Category: Knowledge

In a judgment dated May 11, 2023 (ref. P 12/18), the Constitutional Court ruled, among other things, that:

Article 22(5)(3) of the Act of July 23, 2003 on the protection and care of historical monuments (Journal of Laws of 2022, item 840), to the extent that it restricts the right of ownership of real estate by allowing real estate to be included as a monument in the communal  register of monuments, without providing the owner with a guarantee of legal protection against such restriction, is inconsistent with Article 64(1) and (2) in connection with Article 31(3) of the Constitution of the Republic of Poland.

The verdict means that the legislator should modify the regulation concerning, in particular, the procedure for creating a communal register of monuments, so as to give property owners the opportunity to challenge an entry in the register.

The justification states that: “The inclusion of real estate in the communal register of historical monuments causes significant restrictions, in particular with regard to the exercise of the right of ownership (ius utendi) involving the obligation to agree with the provincial conservator of historical monuments on decisions on determining the location of a public purpose investment, decisions on development conditions, decisions on construction permits, decisions on demolition permits and decisions on the approval of a construction project (cf. Act of March 27, 2003 on spatial planning and development [Journal of Laws of 2022, item 503, as amended] and Act of July 7, 1994. – Construction Law [Journal of Laws of 2023, item 682, as amended]). (…) Article 22(5)(3) of the Law on the Protection of Monuments, as interpreted by the courts, is not necessary for the protection of the public interest, and its effects are not in acceptable proportion to the burdens imposed on property owners.

The weakening of property protection, by excluding the owner’s participation in the proceedings resulting in the entry of real estate in the municipal register of monuments, does not serve any constitutionally legitimate values.”

We invite you to read the following post by Law Firm Partner attorney at law Jakub Stempski on changes to the Labor Code that take effect in the first calendar quarter of 2023, which will  affect all employees, that means employees in investment process as well.

Longer parental/maternal leave.

The regulations currently in force entitle the child’s parents to parental leave of 32 weeks in the case of a single pregnancy and 34 weeks in the case of multiple pregnancies. The new legislation extends these leaves to 41 and 43 weeks. In addition, 9 weeks of this will be due to the father and mother separately and the leave will be “non-transferable”, the parent will have to use at least that much, in the event of non-use, and the other parent will not be able to “take” the leave to use instead. Moreover, the amount of the maternity benefit will change and will amount to 70% of the calculation basis, unless the employee submits the application within 21 days from the date of the child’s birth, then the benefit will amount to 81.5% of the calculation basis. The amendment shortens the time for taking paternity leave from the current 24 months from the child’s birth to 12 months from the child’s birth.

We invite you to read the following post by Law Firm Partner attorney at law Jakub Stempski on changes to the Labor Code that will take effect in the first calendar quarter of 2023, which will  affect all employees, that means employees in investment process as well.
 
Unpaid care leave.
 
The employee will be able to use up to 5 days a year to care for a family member (children, parents, spouse) or a person remaining in a common household if there is a need to provide significant care for this person for medical reasons without the right for remuneration. The application has to be submitted by the employee no later than the day before the date of commencement of care. The days can be used in whole or in part at one time.

The procedure for legalizing a construction without a building permit consists of several stages. After conducting an evidentiary proceeding to determine whether the reported property constitutes a bconstruction without a building permit, the building supervision authority, acting in particular on the basis of the content of Article 48 paragraphs 1 and 3 of the Building Law, issues appropriate decisions.

Among other things, the authority decides to suspend the execution of construction works, informs on the possibility of filing an application for the legalization of a construction without a building permit, and also imposes an obligation to pay the so-called legalization fee.

Determination and payment of the legalization fee is a condition for legalization of a construction without a building permit, while failure to pay the fee results in the obligation of the cbuilding supervision authority to issue a decision on demolition of the building.

The amount of the legalization fee is affected by various factors, which include the category of the construction object and the coefficient assigned to it, as well as the coefficient for the size of the object. Meanwhile, the values for each category of object are regulated in the annex to the Building Law. In turn, which coefficient will be used in a given case depends on the facts established and adopted by the authority conducting the proceedings. In view of this, it is the building supervision authority that determines how the object should be classified, determines its size and, on this basis, determines the amount of the legalization fee.

However, what happens if, in the course of the proceedings, the authority erroneously determined the facts of the case, assigning the construction object to the wrong category, or admittedly correctly determined the facts, but in the decision setting the amount of the legalization fee applied the wrong coefficients?  And what if he did it correctly but wanted to change the legalization fee for other reasons? In such a case, can the authority, based on the content of Article 113 § 1 of the Act of June 14, 1960, the Code of Administrative Procedure (i.e., Journal of Laws of 2021, item 735, as amended – hereinafter the Code of Administrative Procedure), change the amount of the fee by correcting an obvious clerical error?

 In one of our cases, the District  Inspector of Building Supervision tried to change precisely the amount of the previously established legalization fee.

Why couldn’t he do so, based on the content of Article 113 § 1 of the Code of Administrative Procedure?

In the body of the complaint, arguments were presented indicating that the above ruling was unjustified, among other reasons, due to the fact that the change made by the supervisory authority could not be qualified as having the character of correcting an obvious clerical error. The amendment constituted a substantive change to the ruling and referred to the determination of an element of the facts of the case in the form of determining the purpose of the part of the building subject to legalization. These findings, in turn, affected the components determining the amount of the legalization fee – which put the parties to the proceedings in a different legal position.

Judicial case law give the terms: “clerical and calculation errors” and “other obvious mistakes” specific meaning. In fact, a calculation error is understood as a mistake in the performance of a mathematical operation, e.g., addition or division, while a clerical error is understood as an apparent misuse of a word, a misspelling or an apparent unintentional omission of one or more words, contrary to the authority’s intention (so NSA, among others, in the judgment of February 10, 1994, ref. SA/Kr 723/93 – ONSA 1995 no. 2, item 65).

The purpose of applying the procedure set forth in the provision of Article 113 § 1 of the Code of Administrative Procedure remains the repair of the disturbed connection between the will (intention) of the authority and its defective, erroneous externalization, and only with regard to some specific, irrelevant character of the defect contained in the decision itself. The field of action of the public administration body designated by the above-mentioned provision is limited only to clarifying to the party the doubts raised about the expressions used in the decision, unclear wording or abbreviations used that make it difficult to determine the meaning of the decision, and may not lead to a change in the decision (see the judgment of the Supreme Administrative Court of September 26, 2008, ref. II FSK 943/07).

A decision to correct a decision issued on the basis of Article 113 § 1 of the Code of Administrative Procedure may not shape the legal situation of a party, since such an effect, either in the sphere of material and legal relations or in the sphere of procedural relations, may be produced only by the decision to which the correction relates (cf. the judgment of the Supreme Administrative Court of March 20, 2008, ref. II GSK 397/07).

By determining the amount of the legalization fee in a different way through a different qualification of the property in question and categorizing it not, as had been the case in previous rulings, as a single-family residential building, but as catering trade buildings, the supervisory authority made a substantive change.

The Wielkopolski Regional Inspector of Building Supervision, reviewing the issue in question, fully shared the position expressed in our complaint and indicated that the District Inspectorate of Building Supervision was not authorized to change the decision in the scope presented, while revoking the appealed decision.

The appellate authority explicitly pointed out that the changes proposed as a result of the rectification are not changes having the characteristics of an obvious clerical error and  errors immediately noticeable without the need for analysis and examination of the case file. It was also emphasized that the institution of rectification of a clerical, accounting or other obvious  error cannot be used by the authority as an instrument for correcting procedural errors committed by the authority.

Therefore, the building supervision authority may not arbitrarily make changes to its decisions – especially on such an important issue as the legalization fee, which largely shapes the course of legalization proceedings. Since the fee was established on the basis of a certain factual situation, it cannot be subsequently changed by rectification, which would ultimately lead to the calculation of a different legalization fee.

By attorney at law Żaneta Gościej

We invite you to read the following post by Law Firm Partner attorney at law Jakub Stempski on changes to the Labor Code that will take effect on January 1, 2023, which will affect all employees, that means employees in investment process as well.

Leave on demand due to force majeure.

An employee in a family emergency caused by an accident or illness will be entitled to leave work for 2 days or 16 hours a year. Part-time employees will be entitled to a proportionally determined amount of this leave. The application has to be submitted by the employee no later than on the day when the leave is taken. While taking leave due to force majeure, the employee will be entitled to remuneration in the form of 50% of his/her normal remuneration.

We invite you to read the following post by Law Firm Partner attorney at law Jakub Stempski on changes to the Labor Code that will take effect on January 1, 2023, which will affect all employees, that means employees in investment process as well.

The employee’s right to stable working conditions.

If the employee has worked for at least 6 months, the employee will have the right to ask the employer to change the contract for an indefinite period or to hire him full-time. The employee’s application may be rejected at the will of the employer, but the employee’s application for stable working conditions cannot be refused. The employer will be required to respond to the request in writing or electronically, and in the event of refusal to justify the decision.

In August this year, significant changes to the Labor Code were to enter into force, implementing EU directives on parenthood and transparent working conditions. Due to the delay in legislative work in the Polish parliament, the implementation of these changes has been postponed. As of today, the government plans to enter into force of the new regulations from January 1, 2023. Poland had 3 years to implement these changes – the original implementation date expired at the beginning of August 2022. In upcoming posts, we will present material on the planned changes, compiled partner attorney at law Jakub Stempski.

Contracts for a trial period.

The amendment introduces several modifications to the existing solution, which relate to:

1. the possibility of extending the contract for breaks at work, such as vacation, excused absence,
2. a renewed employment contract for a trial period may be concluded only if its subject is a different type of work,
3. the contract may be concluded for a period depending on the period for which the employer intends to employ the employee next, e.g. if the employer intends to hire the employee for a fixed period of less than 6 months, a trial period contract may be concluded for a month, if the contract is for a period of time specified will be concluded for a period between 6 and 12 months, then a trial period contract may be concluded for a period of two months,
4. a contract for a trial period may be concluded for a maximum of 2 months, as indicated above, while the contract concluded for both one month and two may be extended by a maximum of one month.

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.