The procedure for division of real property, regulated by the Act on Real Property Management, has been designed to remain consistent with the local zoning plan. The divisions themselves may not lead to circumvention of the provisions contained in the local plans. Most common disputes with authorities in regard to plot divisions are connected to minimum plot areas and attempts to circumvent the provisions on minimum plot area. Importantly, in the absence of a local plan, the legislator has provided a separate set of regulations on that matter, which will not be discussed in this article.
Article 93 of the Act on real estate management clearly indicates that a division of real estate may be made if it is consistent with the provisions of the local plan, and the consistency with the provisions of the plan concerns both the intended use of the land and the possibility of development of the separated land plots. It is the consistency of the proposed division of real property with the provisions of the local plan (except for divisions which are made irrespective of the provisions of the plan) that is subject to the opinion of the mayor (hereinafter referred to as the head of the commune). The party requesting the division does not have to file a separate request for an opinion, as the opinion is a necessary stage of the division process, therefore the authority in charge of the case must ensure that such opinion is issued. Such an opinion is issued in the form of a decision which may be appealed against to the local government appeals board (org: samorządowe kolegium odwoławcze) and cannot be issued ‘separately’ from the division procedure. Thus it is not possible to request such an opinion before submitting the application for division, which the parties sometimes try to push through explaining that they want to “check whether it is worth initiating the procedure”.
In the decision itself the mayor specifies whether he assesses the proposed division “positively” or “negatively” – and in the justification of the decision, the mayor is obliged to explain why the plots created as a result of the division can be developed according to the local plan.
The administrative courts have repeatedly ruled on whether a decision giving an opinion is binding for the body performing the division. There is no doubt that it is binding. The Supreme Administrative Court – the “NSA” (judgment of 9 March 2018, ref: I OSK 946/16) indicates that ‘the authority approving the division of real property is bound by its opinion on the compliance of the proposed division with the local plan. This binding refers only to the fundamental issue which is subject to the opinion, and thus refers only to the compliance of the proposed division of real property with the provisions of the local plan”. The NSA further pointed out, however, that the body giving the opinion does not have a binding opinion on other substantive issues – therefore, if other obstacles to the division arise, a final refusal decision may be issued.
It is worth bearing in mind that the opinion applies to the entire project of division – so if only a part of the proposed plots cannot be developed in accordance with the plan, a negative decision will be issued with respect to the entire project submitted for division. However, the applicant may change the project in accordance with the suggestions contained in the decision, in which case the authority will request a new opinion.
What if it turns out that the opinion was issued incorrectly and the authority has not yet issued its decision? The mayor cannot ex officio change the opinion, he/she may only request the local government board of appeals to initiate proceedings for its invalidity – if, of course, the conditions under Art. 155 of the Code of Administrative Procedure are met.