When we launched our series "Tuesday Mornings for Construction" in June 2020, we wanted to familiarize you with the changes related to the coming into force of the amendment to the Construction Law. Moreover, since then, we have covered these topics much more extensively and hope that they are useful in the course of your investments. After two years, we want to introduce a small change, and on the first Tuesday of each month, we will prepare a summary of the most important legal changes that have entered or will enter into force, as well as current rulings and interpretations. In short, we will concisely present information that is current and may be useful from the perspective of the real estate market. Of course, we are aware of further planned and announced changes to the Construction Law, but this topic will be the subject of a separate article.
So let's start with today's article.
I. Deadline for submitting declarations regarding heat sources – June 30, 2022.
The obligation to submit declarations regarding heat sources arises from the amended Act of November 21, 2008, on supporting thermal modernization and renovations and on the central register of building emissions. The amendment entered into force on July 1, 2021, and introduced a 12-month period during which all building owners were required to submit declarations, which will be part of the Central Register of Building Emissions (CEEB). We wrote about the details in article #58 , and we encourage you to read it again.
Declarations can be submitted in paper form to the appropriate municipal office or completed online via the ZONE application https://ceeb.gov.pl/ (login is required via a trusted profile, e-ID, or through selected banks). According to the General Office of Building Control, over 3.5 million declarations have been submitted by May 18, 2022.
At the same time, we would like to remind you that, in accordance with the regulations, failure to submit a declaration is punishable by a fine, imposed in accordance with the Code of Procedure for Petty Offences.
II. The new development act comes into force on July 1, 2022.
We have written about it many times and in detail ( #47 , #48 , #49 , #50 , #51 , #52 , #53 , #54 , #55 , #56 , #57 ), but it is such an important topic that it is worth reminding again - on July 1, 2022, a new development act comes into force , i.e. the Act of May 20, 2021 on the protection of the rights of buyers of residential premises or single-family houses and on the Developer Guarantee Fund.
Of course, for the next two years, developers will have the right to apply the provisions of the current act if they commence sales and conclude at least one development agreement before that date. However, it's worth remembering that the new development act requires all developers to establish escrow accounts and introduce additional provisions into existing development agreement templates (even if conducting a development project under the current regulations).
The regulation of the Minister of Development and Technology regarding the percentage rates used to calculate contributions to the Developer Guarantee Fund has not yet been signed, and for now, only the draft text is known. According to the draft, the rate for open escrow accounts is to be 0.45% , less than half the rate envisaged by the new Development Act. For closed escrow accounts, the proposed rate is 0.1% , the maximum allowable rate.
Interestingly, the President of the Office of Competition and Consumer Protection (UOKiK) in his opinion on the draft regulation indicated that the contribution "was calculated at an excessively low level and does not take into account the current risks for buyers, including the underestimation of payments related to developer bankruptcies resulting from the current economic and geopolitical situation." The National Bank of Poland (NBP) and the Insurance Guarantee Fund (UFG) also believe that the contribution rate for open escrow accounts is significantly underestimated. The UFG explicitly states that this contribution should be 0.96%. Meanwhile, the Polish Association of Developers (PZD) indicated that the rate should be set at 0.2%. The Ministry of Finance and Technology (MRiT) responded to the response, stating that it had considered the comments but remained committed to the initially proposed contribution rate, pointing out that this rate could be changed (rather upwards) if necessary . Therefore, it can be assumed that the initial percentage of the contribution will be adopted at the initially proposed level.
Turning to the bill intended to postpone the entry into force of the new development law, the Sejm's website still states that the applicants have been requested to provide additional justification. Considering that July 1st is less than four weeks away, the chances of its adoption are slim indeed.
III. Technical conditions – extension of the deadline for change by 2 years
At the end of 2021, the then Minister of Development and Technology submitted a draft regulation for consultation on the technical requirements that buildings and their locations must meet . Those of you who have seen this 208-page draft know that its entry into force in September 2022 would negatively impact the entire real estate market.
The legislator also took note of this, and on May 10, 2022, the Act of March 24, 2022, amending the Act on the Protection of Tenants' Rights, Municipal Housing Resources, and Amending the Civil Code and the Act on Ensuring Accessibility for Persons with Special Needs was published. This Act extended the validity period of the existing Regulation of the Minister of Infrastructure of April 12, 2002, on the technical conditions to be met by buildings and their location, by another two years. This means that it will not expire until September 20, 2024. Hopefully, a new regulation will be developed by then, taking into account the demands of all participants in the investment and construction process.
IV. Act on Guaranteed Housing Loans – May 26, 2022
In May, the provisions of the Act of October 1, 2021, on Guaranteed Housing Loans, also came into force. According to the legislature's assumptions, this act is intended to increase the number of people who will be able to afford to purchase a home by providing a "guarantee for the repayment of a portion of the guaranteed housing loan," thus replacing the down payment required to obtain a mortgage.
However, it seems that in the current economic climate, the coefficients assumed in the law, which are the basis for calculations, are undoubtedly too low, and buyers in most large cities will not have access to this facility. Reports indicate that the government plans to increase these coefficients, but this remains unknown at this time.
To sum up, it seems that in the event of a significant increase in the coefficients that are the basis for granting guarantees, it seems that such an instrument could increase the number of potential buyers of apartments, both on the primary and secondary markets.
V. Interpretation of the GUNB regarding the transfer of the decision on the legalization of unauthorized construction
There's no doubt that official interpretations of regulations have no legal force in Poland, but in practice they shape the practice of architectural and construction administration offices. The website of the General Office of Building Control (GUNB) periodically features an article in the "interesting interpretations" series under the news tab. The latest article concerned the possibility of transferring a building legalization decision under Article 40 of the Construction Law .
The GUNB indicated in it that since the legislator did not mention this decision in the indicated article, it cannot be presumed that the legalisation decision referred to in Article 49, paragraph 4 of the Building Law can be transferred.
What does this mean in practice? If, after a legalization decision has been issued, a change of ownership occurs for a property with an illegal construction for which an occupancy permit has not yet been issued, the person who became the owner of the illegal construction, but who was not the addressee of the legalization decision, will not be able to obtain such a permit. Only the addressee of the legalization decision can submit an application. Therefore, in real estate sales agreements, it is advisable to obtain such a commitment from the previous owner. However, a problem arises if the previous owner has died or been liquidated. It seems that in such a case, the legalization process will have to be repeated.
Next week, due to the great interest and many inquiries received in connection with the entry into force of the Act on Guaranteed Housing Loans, we will devote an article in our series to this issue.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of May 6, 2022
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