We would like to thank representatives of the RES industry for the opportunity to have breakfast together, combined with discussion and exchange of common experiences.
Among other things, we talked about the challenges of non-normative transports, land leases, relations with the local community and local government. We also discussed the most recent draft windmill law amendment.
See you at the next meetings!
The land and mortgage register is an official set of documents maintained by the court competent for the location of the real property. Land and mortgage registers are maintained in order to establish the legal status of real estate. One of the main principles of keeping land and mortgage registers is a presumption, according to which a right disclosed in the land and mortgage register is entered in accordance with the actual legal state. This principle justifies the presumption that: 1) the registered right exists; 2) it belongs to the entity indicated in the entry; 3) the content of the right is consistent with the entry; 4) the right has priority resulting from the entry.
The above presumption is dictated primarily by ensuring security of legal transactions in real estate by ensuring reliability of land and mortgage registers. The land and mortgage register consists of four sections marked with Roman numerals I, II, III, IV. Section I of the land and mortgage register comprises section I-O “Designation of real property” and section I-Sp “Inventory of rights connected with ownership”. Section II discloses the right of ownership and perpetual usufruct. Section III is used to disclose limited rights in rem (except for mortgages), restrictions on the disposal of real property or perpetual usufruct, as well as personal rights and claims against the real property (except for claims concerning mortgages). Section IV records mortgages and claims relating thereto.
In order to ensure security of real estate transactions it is desirable that land and mortgage registers disclose the full legal status of real estate, updated on an ongoing basis as changes occur. It should be emphasised that the presumption of conformity of entries with the actual state extends only to the legal state of the real estate, which is disclosed in sections I-Sp, II, III, IV, but does not extend to entries in section I-O, which contains factual data regarding the designation of the real estate.
In fact, there are situations when an entry in the land and mortgage register is inconsistent with the actual legal state. The inconsistency of the content of the land and mortgage register with the actual legal state may have various forms, and may consist, in particular, in the lack of disclosure of a right, the lack of entry of existing encumbrances or limitations of a right, an incorrect entry of a right, or finally the disclosure of a non-existent encumbrance or limitation. Therefore, it cannot be automatically assumed that every land and mortgage register reflects the current legal state of the real estate.
In the event that the legal status of a real estate disclosed in the land and mortgage register is not consistent with the actual legal status, then the only way to remove the inconsistency is to institute an action for reconciliation of the land and mortgage register with the actual legal status. The legal basis for such an action are the provisions of the Act on Mortgage and Land and Mortgage Registers. A request for reconciliation of the content of the land and mortgage register with the actual legal state is subject to examination by a civil court. Action for removal of discrepancies may be brought if:
1) an existing right is not registered in the land and mortgage register, e.g. a second spouse has not been registered as a co-owner of the real estate, despite the fact that the real estate was purchased during the course of the marriage, one of the partners of a civil partnership has not been registered as a co-owner;
2) the right is registered in the land and mortgage register incorrectly, e.g. incorrect amount of share in co-ownership of the real estate in fractional parts is entered, another spouse is registered as a co-owner of the real estate, despite the fact that the real estate belongs to the personal property of one spouse only; or
3) in the land and mortgage register a non-existing encumbrance or restriction is entered, e.g. mortgage established on the real estate being a joint property of a spouse without the consent of the other spouse is entered, life-tenancy is entered whereas the real estate has been encumbered with life-tenancy servitude of dwelling.
A court judgment in a case for reconciliation of the content of the land and mortgage register does not automatically correct an erroneous entry. Only on the basis of a positive verdict, stating the discrepancy between the legal status of the real estate as disclosed in the land and mortgage register with the actual legal state, the competent land and mortgage register court makes a corrected entry in the land and mortgage register. Therefore, there is a need for cumulative, successive proceedings of both courts, and their joint result is a final reconciliation of the content of the land and mortgage register with the actual legal state.
Reconciliation within the meaning of Article 10 of the Act on Mortgage and Land and Mortgage Registers does not include rectification of real estate designation, e.g. when it appears from the land and mortgage register that the real estate is undeveloped, while in fact it is developed or the wrong area of the real estate is entered in the land and mortgage register. Rectification of faults in entries in Section I-O takes place under a simplified procedure pursuant to the provision of Article 27 of the Act on Mortgage and Land and Mortgage Registers. According to this provision, on the basis of data from the land and building register, at the request of the real estate owner or perpetual usufructuary, the designation of the real estate is rectified in the land and mortgage register.
Rectification of the real estate designation is made in the course of non-court proceedings. The rectification is made by the land and mortgage register court by making an entry. When considering the application to change the designation of the real property in the land and mortgage register, the court ex officio checks the data contained in the application and the designation of the real property disclosed in the land and mortgage register against the data of the real property cadastre (land and building register). As opposed to rectification of an erroneous entry of the legal status of real property, in this case there is no need to obtain a prior court ruling confirming the erroneous entry in the land and mortgage register, as the application for rectification is immediately examined by the land and mortgage register court.
In October this year, legislation came into force which imposes additional obligations on those serving on the boards of housing cooperatives.
On 31 October 2021, an amendment to the Act on Prevention of Money Laundering and Financing of Terrorism comes into force. Among other things, the Act regulates the operation of the Central Register of Beneficial Owners (CRBR). This is a system that collects and processes information on beneficial owners, i.e. natural persons exercising direct or indirect control over companies and other entities.
Until now, the obligation to make notifications to the CRBR concerned primarily commercial law companies. Pursuant to the Law on amending the Law on Anti-Money Laundering and Financing of Terrorism and certain other laws of 30 March 2021 (Journal of Laws of 2021, item 815), the circle of entities obliged to make a notification to the Register of Beneficial Owners has been expanded to include, among others, cooperatives and European cooperatives. These entities are obliged to make a notification to the Central Register of BeneficialOwnerswithin 3 months from the date of entry into force of the amendment, i.e. from 31 October 2021.
The notification to the CRBR is made by a person authorised to represent a given entity (in practice it will be the management board of a cooperative). It shall be made free of charge by means of electronic communication. The notification shall be submitted in the form of an electronic document in accordance with the template made available by the minister competent for public finance. The notification should be made via the website: https://www.podatki.gov.pl/crbr/. The notification should bear a qualified electronic signature or a signature confirmed by the trusted ePUAP profile and contain a statement of the person making the notification to the Register on the veracity of the information reported to the Register.
The Act contains a very extensive definition of a beneficial owner. In order to simplify, it should be indicated that it is a natural person who directly or indirectly controls a given entity and who has an actual or legal possibility to exert a decisive influence on this entity. In the case of cooperatives, members of the management board should be regarded as such persons.
Failure to comply with the obligation to notify the CRBR may result in a fine of up to PLN 1,000,000 being imposed on persons responsible for its implementation.
The second significant change, which came into force on 5 October 2021, is related to the amendment of the Act on electronic delivery (Journal of Laws of 2020, item 2320). By the above-mentioned Act, the legislator amended the content of Article 16 of the Cooperative Law, giving it the following new wording:
§ 1. The condition for admission as a member is the submission of a declaration. The declaration should be submitted in writing recorded in paper or electronic form. The letters recorded in electronic form shall be sent to the electronic delivery address of the cooperative as referred to in Article 2 item 1 of the Act of 18 November 2020 on Electronic Delivery (Journal of Laws, item 2320) and shall bear a qualified electronic signature, a personal signature or a trusted signature. A letter fixed in paper form shall bear a handwritten signature. The declaration signed by the acceding member should contain his/her name and place of residence, and if the acceding member is a legal person – its name and seat, the number of declared shares, data concerning contributions, if the statutes provide for their payment, as well as electronic delivery address referred to in Art. 2 item 1 of the Act of 18 November 2020 on electronic delivery, entered in the database of electronic addresses referred to in Art. 25 of that Act, if the acceding member has such, and other data provided for in the statutes.
§ 2. If the cooperative is at the same time an obliged institution within the meaning of the Act of 1 March 2018 on the prevention of money laundering and terrorist financing (Journal of Laws of 2020, item 971, 875, 1086 and 2320), the declaration referred to in § 1 may also be submitted under nullity in documentary form within the meaning of Article 77(2) of the Civil Code. In such a case, the provisions of the Act referred to in the first sentence shall apply to the identification and verification of the identity of the person who seeks admission as a member.
The amendment of Article 16 of the Cooperative Law consists in enabling the submission of a membership declaration in writing recorded in paper or electronic form. The changes, coming into force as of 5 October 2021, correspond with the obligation to have an address for electronic delivery entered in the so-called electronic address database, linked to a public registered electronic delivery service or a qualified registered electronic delivery service imposed on cooperatives in Article 9(1)(8) of the Electronic Delivery Act. According to this provision, each entity entered in the Register of Entrepreneurs of the National Court Register (i.e. also housing cooperatives) is obliged to have an address for electronic delivery entered in the database of electronic addresses, connected to the public registered electronic delivery service or a qualified service of registered electronic delivery.
The amended provisions allow members of housing cooperatives to submit membership declarations in electronic form (this possibility applies to persons acquiring membership on the basis of a declaration – i.e. persons acquiring separate ownership of premises and tenants of cooperative premises) by sending them electronically to the cooperative’s e-mail address. However, in order to be able to fulfil the above obligation it is not sufficient to have a regular e-mail address. It will be necessary to use a special e-delivery application that will allow sending and receiving electronic correspondence being the equivalent of registered mail (registered or with return receipt).
In order to create a public address, it will be necessary to submit a relevant application to the minister competent for informatisation. Once the e-mail address has been entered into the database of electronic addresses, it will be possible to receive membership declarations submitted electronically.
When signing the notarial deed of sale of a house or flat, you can often find in it provisions on the transfer of the so-called energy performance certificate by the seller. Sometimes the provision of the contract informs only about the failure to provide this document by the seller. Not all buyers are aware of the rights they have if the seller fails to deliver the energy performance certificate.
The above issues are regulated in detail by the Act of 29 August 2014 on the energy performance of buildings (hereinafter as “the Act”).
According to the Act, the energy performance should be understood as a set of data and energy indicators for a building or part of a building, determining the total energy demand necessary for its use as intended. This information is a source of knowledge for the buyer about the potential costs of heating the building.
The owner or manager of a building or parts of a building is obliged to ensure the drawing up of an energy performance certificate for the building or parts of a building sold under a sales contract. The same obligations apply to the owner of a rented building or parts thereof. The certificate should be handed over to the buyer or tenant respectively:
– upon conclusion of the sales contract, or
– upon conclusion of the tenancy contract.
The certificate is drawn up in accordance with the methodology set out in the Regulation of the Minister of Infrastructure and Development based on the standard way of using a building or part of a building (calculation method) or with the method based on the actually consumed amount of energy (consumption method). The second method is available only for premises from the secondary market, in which the consumption of utilities is settled on the basis of meters and there are documents confirming the actual consumption of heat or natural gas from the last 3 years prior to the energy performance certificate.
The Act sets out the minimum requirements for the content of an energy performance certificate. It should include:
1) identification data of the building or part of the building;
2) energy performance of the building or part of the building;
3) recommendations specifying the scope and type of construction and installation works that will improve the energy performance of the building or parts of the building.
In the event that the seller or the landlord fails to comply with the obligation to provide the buyer or the tenant with the certificate, the buyer or the tenant may, within 14 days of the conclusion of the agreement on transfer of ownership or tenancy agreement, request in writing the transferor or the landlord to comply with this obligation within 2 months of service of the request. If despite the request the certificate is not handed over within this period, the buyer or tenant may have an energy performance certificate drawn up at the cost of the seller or landlord. The buyer or tenant may not waive this right. Possible inclusion of such statements in the sale contract or the tenancy contract will be ineffective.
The law also specifies the minimum qualifications of persons authorised to draw up certificates, and expresses a ban on the drawing up of certificates by property owners or managers – it is therefore unacceptable to draw up a certificate for oneself.
Finally, it should be pointed out that work is currently underway on a draft amendment to the Act on amending the Act on the energy performance of buildings and other acts. The legislator justifies the need for change, inter alia, by the fact that there are currently no effective mechanisms to ensure the transfer of energy performance certificates in connection with the sale or tenancy of buildings or parts of buildings. The amendment is intended to strengthen the mechanisms protecting the interests of property buyers in terms of obtaining an energy performance certificate for the acquired building or premises in connection with the conclusion of the agreement, and in the case of a tenant – receiving a copy of such a certificate upon conclusion of the tenancy agreement.
The amendment provides for an obligation on the seller or the landlord to provide a copy of the energy performance certificate of the building. According to the proposed change, in case of failure to provide the certificate, the notary will be obliged to refuse to perform notarial act.
The planned changes should be assessed positively. The rigour of refusal to draft a notarial deed will probably contribute to improving the implementation of the obligation to provide buyers or tenants with energy performance certificates.
Yesterday, a partner at our law firm, attorney at law Lidia Blaszka, gave a lecture titled “The Principle of Proportionality in Planning and Zoning” at the Planning and Zoning Congress. We would like to thank Must Read Media for the opportunity to participate in the conference, knowledge gained during the other lectures and see you at the next event!
According to the current legislation, the obligatory body of a housing cooperative is, among others, the general meeting. By virtue of the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them, the deadline for holding general meetings in housing cooperatives was postponed, which, as a rule, were supposed to be held by 30 June each year (Article 90 of the above-mentioned Act). Pursuant to the cited regulation, general meetings should be held within 6 weeks from the date of cancellation of an epidemic emergency or a state of epidemics. The changes introduced have led to a situation where some management boards of cooperatives interpret the provisions in such a way that they do not hold a general meeting because they comply with Article 90, which postpones the date of holding a general meeting. In other words, the boards believe that the general meeting should only be held once the state of the epidemic has ended.
The above view is not justified under the current legislation. Participation in a general meeting is a right of every member of a cooperative and a state of epidemics should not justify restricting this right.
There are two solutions for the legal holding of a general meeting. Firstly, during a state of emergency or epidemic the management board or supervisory board may order that a specific resolution be adopted by the general meeting either in writing or by means of direct remote communication. However, the main obstacle to holding general meetings in this form are worries of some of members of cooperatives about validity of meetings in such form . Not without significance is also the lack of regulation in the current statutes or regulations concerning the course of meetings held in the remote format.
In such a case, the managers of cooperatives have the option of holding them in a traditional formula. When organising a general meeting, however, one should bear in mind the applicable epidemiological restrictions resulting primarily from the provisions of the Regulation of the Council of Ministers of 6 May 2021 on establishing certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic (Journal of Laws of 2021, item 861). By introducing limits on the participants of meetings or assemblies, the legislator has restricted the possibility to hold meetings or assemblies in a traditional form. These restrictions also apply to general meetings of cooperatives.
The provisions of the Ordinance on the establishment of certain restrictions, orders and prohibitions in connection with the outbreak of an epidemic in § 26(15) indicate that:
– Until 31 August 2021, it is prohibited to organize and participate in assemblies other than those specified in paragraph 1 and paragraph 1a, including events, meetings and gatherings of any kind, except:
1) business and professional meetings or gatherings;
2) events and meetings of up to 25 persons which take place on the premises or in the building indicated as the address of the residence or stay of the person who organizes the event or meeting; the limit of persons does not include the person organizing the event or meeting and persons cohabiting or managing with him;
3) events and meetings of up to 150 persons which are held in the open air or on the premises or in a separate catering area of a sales hall, referred to in § 9(15)(2)
[§ 9(15)(2) concerning the conduct by entrepreneurs within the meaning of the provisions of the Act of 6 March 2018. – Entrepreneurs’ Law and by other entities the activity consisting in the preparation and serving of meals and beverages to guests seated at tables or to guests making their own choice of dishes from the displayed menu, consumed on the spot (included in the Polish Classification of Activities in subclass 56.10.A) and related to the consumption and serving of beverages (included in the Polish Classification of Activities in subclass 56.30.Z)];
4) gatherings, meetings or meetings related to the performance of tasks aimed at combating or preventing the spread of contagious animal diseases, including free-living (wild) animals.
It should be stated that in the period until 31 August 2021 it is possible to hold a general meeting provided that no more than 150 persons participate, it is held in the open air or in premises or a separate catering area belonging to an entrepreneur conducting food service activities. In addition, all participants should comply with the obligation to cover their mouths and noses.
The legislation in force as of the date of this information (16 August 2021) does not set limits for participants in assemblies or meetings held after 31 August 2021.
However, it cannot be ruled out that the legislator will decide to introduce new limits or maintain current limits also after this date. For this reason, it is essential to familiarize yourself with the current epidemiological restrictions each time before deciding to convene a general meeting.
Pursuant to the Act on Housing Cooperatives, by default the management board should convene a general meeting at least once a year within 6 months after the end of the financial year. In practice this means that a general meeting of members should be held no later than June 30th each year. The date of holding a general meeting is often of significance for the moment when the term of office of members of the cooperative’s governing bodies, especially supervisory boards, ends. Often the statutes link the term of office with the moment the general meeting is held.
The provisions of the “Covidowa” Law (Law on Amendments to the Law on Special Arrangements for Preventing, Counteracting and Combating COVID-19) due to the state of epidemic extended the term of office of housing cooperative’s governing bodies. According to Article 90 of the cited Act, the deadline for convening a general meeting of a cooperative that falls during a state of epidemic or epidemic threat is extended. Therefore, the management board may postpone the convening of a general meeting for up to 6 weeks after the state is revoked.
In connection with the foregoing, the legislature also extended the term of office of members of housing cooperative’s governing bodies by enacting the provision of Article 90a according to which, “If the term of office of a cooperative’s supervisory board or board of directors expires during a state of epidemic emergency or a state of epidemic which is in effect on the day this Act comes into force or which is declared to be in effect immediately after the period in effect on the day this Act comes into force, it shall be extended until the date on which the first general meeting of the cooperative is convened within the period referred to in Article 90.”
A legal norm has been adopted that by law extends the term of office of the supervisory board or management board if the term of office has expired or will expire during a state of epidemic emergency or a state of epidemic. Some practitioners indicate that, as a result of this norm, the term of office of the members of the bodies has been extended until the expiration of the period indicated in Article 90 (i.e., 6 weeks after the cancellation of the epidemic state).
The above view is incorrect and does not deserve to be accepted.
It should be noted that the Act on Housing Cooperatives and analogously the “Covidava” Act set the maximum, limiting deadline for the management board to convene a general meeting which may also be held prior to this date.
There is no provision that would prohibit holding a general meeting during the state of an epidemic (only sanitary-epidemiological restrictions apply which may make it difficult or impossible to hold a meeting during such period).
Article 90a extends the term of office of supervisory boards, but only until the first general meeting is convened during the extended period (“the period referred to in Article 90”) in which a general meeting should be held. Thus, if the managemet board calls a general meeting of its members during the epidemic or up to six weeks after its cancellation, the term of office of the members of the governing bodies will be extended, but only until the general meeting is held. Article 90a does not provide that the term of office is extended until the end of the period referred to in Article 90, but only until the first general meeting is held during that period.
The same position was expressed by the Polish Revision Association of Housing Cooperatives (“on the statutory extension of the term of office of the governing bodies of housing cooperatives and the possibility to convene a general meeting in a stationary format”).
In the opinion of the Association, the notion of convening the first general meeting within the deadline referred to in Article 90 should be understood as the first general meeting in a stationary format convened between the period from the entry into force of the Act of 19 June 2020 on interest subsidies for bank loans granted to entrepreneurs affected by the consequences of COVID-19 and on simplified proceedings for approval of the arrangement in connection with the occurrence of COVID-19, i.e. from 24 June 2020 to 6 weeks from the date of cessation of the state of epidemic threat or the state of epidemics. Thus, this term does not include the adoption of resolutions by the general meeting in writing or by means of direct remote communication.
In the opinion expressed by the Revision Association it was also pointed out that “if the first general meeting is convened within the deadline referred to in Article 90, the term of office of statutory bodies shall expire on the date of holding this general meeting, and consequently, members of the governing bodies of a new term of office should be elected at this general meeting.” The above regulation does not limit housing cooperatives in convening general meetings in a stationary format if the sanitary regime regulations concerning e.g. the limit of persons during meetings allow for it. To sum up, when convening a general meeting during an epidemic, one should remember to appoint members of the supervisory board if the statute binds the expiry of their term of office to holding a general meeting.
I.
At the outset, it should be emphasised that local spatial development plans shape the way in which the ownership right to real estate is exercised. Planning acts directly or indirectly affect the rights of individual owners by specifying the way in which land covered by the plan is to be used. In this way, by their actions in the sphere of public law, authorised local government bodies affect the rights of private owners. It is of utmost importance to ensure that the interests of the entities affected by the spatial development plan can be protected.
In the Act on spatial planning and development, the legislator ensured the possibility of active participation of the public in the work on the adoption or amendment of local spatial development plans. Ensuring broad participation of residents in the planning procedures is to foster a proper diagnosis of the needs and expectations of the residents, and a balancing of the interests of various entities. Openness and transparency of planning procedures should also serve this purpose. Article 1(3) of the Act on spatial planning and development directly implies the obligation to balance the public interest with the private interest when determining the purpose or manner of development and use of land. It should be noted that none of them is superior. In case law it is even indicated that the public interest has not been given primacy over the interest of an individual (II OSK 791/19 – judgment of the Supreme Administrative Court (NSA) of 25-11-2020).
Therefore, property owners have the opportunity to influence planning acts in principle at each stage of their adoption. Protection of their interests requires active participation in the planning procedure. The discussion of particular rights vested in the interested persons requires a brief introduction to the planning procedure.
II.
The procedure begins with adoption of a resolution by the municipal council on commencing the preparation of a plan. A draft resolution is prepared by the mayor of a municipality. In order to determine the purpose of the land and specify the manner of its management and development, the municipality council first adopts a resolution on the accession to the preparation of a local spatial development plan. First, however, the head of commune, the mayor or president of the city performs analyses concerning, inter alia, the legitimacy of the plan’s accession to preparation, prepares geodetic materials for preparation of the plan and determines the necessary scope of the planning works. Following the adoption of the aforementioned resolution by the municipal council, the executive body of the municipality (the head of the commune, the mayor or the president of the city) is obliged to undertake activities facilitating public participation in the planning procedure. To this end, it announces in the local press, by way of a notice and in the Public Information Bulletin, as well as in the customary manner adopted in the given municipality, about the adoption of the resolution to proceed with the preparation of the plan, specifying the form, place and deadline for the submission of applications to the plan, which should not be shorter than 21 days from the date of the announcement. The authority does not send to private owners the information about the commencement of the local plan procedure, therefore it is necessary to follow the announcements referred to in the previous sentence. Proposals to the plan within the specified deadline may be submitted by practically anyone, the Act does not contain any subjective restrictions in this respect. Therefore, any owner may, in any form, submit to the executive body their proposals concerning the plan under procedure.
The head of the commune, mayor (city president) is obliged to consider all applications to the plan. The Act does not require the reviewing authority to specify the manner in which the applications are to be incorporated into the plan, nor to provide justification for the rejection of the applications. Each designation in the local spatial development plan of additional limitations on the exercise of the ownership right must be adequately justified in detail, professionally and credibly, therefore the lack of adequate justification for disregarding the applications or comments may constitute grounds for challenging the resolution adopting the local plan.
The next stage of the planning procedure is preparation of the draft local plan by the mayor. At the stage of preparing the draft, the authority considers the applications received earlier. The draft plan contains both text and graphics and therefore a town planner is involved in its preparation.
The opportunity to influence the content of the local plan is given to the local community in the course of a public discussion on the solutions adopted in the draft plan, which should take place during the public examination of the draft. The Act does not contain a definition or further specification of the rules of holding a “public discussion”. Based on the literal wording of the provision of Art. 17 item 9 of the Act, it may be assumed that:
1) the discussion is organised by the head of commune, mayor (city president);
2) it takes place during the public inspection of the draft;
3) the subject of the discussion are to a large extent the solutions adopted in the draft local plan;
4) there are no restrictions as to the entities that may participate in the discussion (thus, the discussion may be attended by both the municipality inhabitants and non-residents, representatives of the communities, legal entities through their representatives, and public administration bodies and organisational units without legal personality through their representatives).
Legal and natural persons as well as organisational units without legal personality are entitled to submit comments on the draft local plan within the deadline specified in the announcement on public disclosure of the draft local plan. The mayor is obliged to consider the comments and may take them into account by amending the draft plan. The decision of the head of commune, mayor (city president) not to consider the applications to the local plan, as well as the comments on the draft plan, are not subject to appeal to the administrative court. If the municipal council finds it necessary to amend the draft local plan submitted for adoption, including as a result of taking into account the comments on the draft plan, it is obliged to partially repeat the procedure of preparing the plan.
III.
Persons whose comments on the project have not been taken into account in the course of the planning procedure may use another instrument, i.e. they may challenge the resolution adopting the local plan. Following the public discussion and consideration of comments on the project, the council of the municipality adopts by way of resolution the local plan or amends it. Based on the provision of Article 101 of the Act on Municipal Self-Government, “Anyone whose legal interest or right has been violated by a resolution or order made by a municipal body in a matter of public administration may challenge the resolution or order to an administrative court.” Thus, the above provision gives a legitimacy to persons whose requests and comments were not taken into account at the stage of the plan procedure to challenge the resolution adopting the local plan. Importantly, it does not follow from the provisions of the Act on Planning and Spatial Development that the inactivity of the owner of the real property covered by the draft plan and his failure to submit comments on the draft plan deprives him of the possibility to demonstrate that his legal interest has been violated by the plan’s provisions and to demonstrate that the violation occurred in excess of the planning authority. In other words, anyone whose legal interest was violated by a resolution adopting a local plan may challenge such resolution, regardless of whether they participated in the earlier stages of adopting the plan by submitting motions to the plan or by filing comments.
A condition for challenging a resolution on adopting or amending a local spatial development plan is that it violates an individual interest of a citizen. The judicature indicates that a complaint may only be filled by an entity that demonstrates its ownership right. Thus, in order to fill a complaint effectively, it is necessary for a party to demonstrate that as a result of adoption of a contested resolution, its specific legal interest or entitlement has been violated by limitation or deprivation of rights arising from its right. In other words, it is necessary to demonstrate that as a result of the adoption of the appealed resolution, a specific and current individual interest has been violated and to indicate the violation by a municipal body of a specific provision of substantive law, having a negative impact on the legal situation of the complainant.
IV.
Irrespective of challenging the resolution adopting the local spatial development plan and the possibility to make motions and comments in the course of the planning procedure, another legal remedy available to the owner whose interest has been violated by the adoption of or changes to the plan is the possibility to pursue claims for compensation for damage resulting from the adoption or changes to the local plan. In order to assert such claims it is necessary to meet strict conditions described below. Pursuing claims does not constitute a stage of the planning procedure, however their emergence is connected with the solutions adopted in the plan, and it is up to the interested party to decide whether to pursue such claims.
The issue of the financial effects of adopting or amending the local plan is regulated by Art. 36 par. 1 of the Act, under which if, in connection with the adoption of a local plan or its amendment, it has become impossible or substantially restricted for the owner or the perpetual usufructuary of the property to use the property or a part thereof in the manner or for its intended purpose, the owner or the perpetual usufructuary of the property may demand from the municipality
1) compensation for the actual damage incurred, or
2) to purchase the real estate or a part thereof.
The above claims may also be executed by way of the municipality offering the owner or perpetual usufructuary a substitute real estate (Article 36, paragraph 2).
Accordingly, if, in connection with the adoption of a local master plan or its amendment, it has become impossible or substantially restricted for the owner (perpetual usufructuary) to use the real property or a part thereof in the manner or for the purposes previously intended, the owner (perpetual usufructuary) is entitled to file a claim against the municipality for compensation or purchase of the real property. The municipality is obliged to execute the claim indicated by the entitled person. If he chooses compensation, he may effectively claim it for the damage he actually suffered (damnum emergens) and not for lost profits (lucrum cessans).
Claims for lack of possibility (limitation) of using a real estate in the same way as before, due to the adoption of a local plan or its change, are time-barred pursuant to the general rules under the Civil Code (see Article 118 of the Civil Code).
The second situation in which the owner has a claim against the municipality is when, following the adoption of the local plan or its change, the use of the property or its part in the existing manner (consistent with the existing purpose) is possible, but the value of the property is diminished. If, in connection with the enactment of the local plan or its amendment, the value of the real property is diminished and at the same time the owner (perpetual usufructuary) has not availed himself of the possibilities referred to in Article 36 (1) and (2) of the Act (i.e. it is possible to use the real property in the existing manner), the owner (perpetual usufructuary) may request from the municipality to pay compensation equal to the diminished value of the real property. Such compensation becomes payable as of the date of sale of the real property (date of conclusion of the sales agreement). Therefore, if the value of the real property is diminished as a result of enactment of the plan or plan amendment, but the owner (perpetual usufructor) does not sell the real property, the claim in question does not arise at all.
In such cases it is essential to obtain an opinion of a real estate valuation expert who will assess whether and in what amount compensation is due.
The following articles will be devoted to detailed discussion of, in turn:
1. principles, form and deadline for submitting applications and comments at the stage of plan procedure;
2. the premises and procedure of appealing against resolutions adopting or amending local plans;
3. pursuing claims for damages by owners related to change of the designation of real property.
According to Art. 60.7 of the Act on Public Finance of August 27, 2009 , public funds constituting non-tax budgetary receivables of a public law nature are included in the income collected by state and local government budgetary units on the basis of separate acts. The zoning fee is such a budgetary receivable.
Let us remind you what a zoning fee is. According to Art. 36.4 of the Act on Planning and Spacial Development of 27 March 2003 , if in connection with the adoption of the local zoning plan or its amendment, the value of the real property increases and the owner or perpetual usufructuary sells the real property, the head of the commune, mayor or president of the city collects a one-off fee established in this plan, determined as a percentage of the increase in the value of the real property. This fee is the municipality’s own revenue. The fee may not exceed 30% of the increase in the value of the subject property.
What then happens in the course of the proceedings on imposition of the zoning fee if the party to the proceedings dies? This issue has in the past been quite a challenge for the authorities. However, it can be concluded that recently the position of administrative courts on this issue has become more uniform.
Therefore, below I indicate three judgments that consistently represent the latest jurisprudence position. Interestingly, this issue has appeared relatively few times in the jurisprudence of administrative courts.
Thus: in the Judgment of the Voivodship Administrative Court in Łódź of November 8, 2017 (file reference: II SA / Łd 689/17), it was indicated (following the resolution of seven judges of the Supreme Administrative Court of December 10, 2009, file ref. II OPS 3/09), that: The complainant did, admittedly, indicate that he had acquired the real estate on the basis of an inheritance division agreement and an agreement of annulment regarding joint ownership, and that he had acquired the plot in question when the current zoning plan was already in force. In his opinion, in such a situation, the imposition of the zoning fee was unjustified, because the purchase and sale of the plot took place when the same local zoning plan was in force – but as indicated above, the Voivodship l Administrative Court pointed out that the mere fact of acquiring real estate by inheritance does not exempt from the obligation to pay the fee. Only here the party purchased the property before the proceedings for calculation of the fee were initiated.
Unlike in the second case, which we are considering, where the death of the party took place in the course of the fee determination procedure. The judgment indicated that the zoning fee, which was not charged before the testator’s death (despite the fact that the proceedings were pending), cannot be charged (judgment of October 7, 2016 of the Voivodship Administrative Court in Glwice, file ref. II SA / Gl 272/15).
The third case involves the situation when the zoning fee has already been calculated and the administrative decision conerning this issue becomes final. This is where the Voivodship Administrative Court in Poznań comes to our aid, which in its judgment of March 14, 2013, file ref. II SA / Po 60/13, unequivocally ruled that “only the zoning fee concretisedin the final administrative decision may be considered an equivalent to a tax liability, and thus only in the case when such a decision is issued with respect to the seller of the real property and becomes final during the seller’s lifetime, that the provisions of the Tax Ordinance may apply accordingly to the obligation to pay zoning fee in a certain amount resulting from this decision”.
To sum up:
we calculate the planning fee when: the seller acquired the property by inheritance and then sold it within 5 years from the date of entry into force of the development plan, and also if the death of the party occured after the decision on the zoning fee became final and legally binding – then we charge the heirs with the fee.
However, we cannot charge the fee if the death of the party occurred in the course of the proceedings regarding the determination of the zoning fee but before its completion.
Poznań
ul. Kochanowskiego 11A / 7
60-845 Poznań
Warszawa
ul. Wilcza 29A / 7
00-544 Warszawa
BLS Blaszka-Griffin, Loretański, Stempski Kancelaria Radców Prawnych spółka partnerska
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