As with every first Tuesday of the month, in today's article, we'd like to explore further legal changes worth noting, particularly in connection with planned investments in the real estate market. First, we'd like to reiterate that on March 23, 2023, the government's bill amending the Spatial Planning and Development Act and certain other acts . We've already begun analyzing the planned changes, and we'll be sharing more in the next articles in our series.
On March 13, 2023, the President signed the Act of March 9, 2023, amending the Act on Investments in Wind Farms and Certain Other Acts , which will enter into force on April 23 of this year. The Act includes an amendment in which the legislator explicitly states that in matters not regulated in the Act, the following provisions shall apply:
a) the Act of 27 March 2003 on spatial planning and development,
b) the Act of 7 July 1994 – Building Law,
c) the provisions of the Act of 3 October 2008 on providing information on the environment and its protection, public participation in environmental protection and environmental impact assessments.
New concepts have also been added to the Act, including definitions of the total height of a wind farm, the operator of a wind farm, and a commune resident, who will be considered a household electricity consumer within the meaning of Article 3, Section 13b of the Act of April 10, 1997 – Energy Law, residing in the commune where the wind farm is located. Furthermore, the amendment introduces Chapter 2a to the amended Act, concerning the principles of safe operation of technical components of a wind farm, and specifies the permissible distances of the farm from other facilities, limiting the so-called "10H rule," which has previously hindered investments. Under the current wording, the permissible distance of a new investment from existing residential buildings and nature conservation areas was at least 10 times the height of the wind farm. The amendment, however, introduces the possibility of specifying a different distance in meters in the local zoning plan, but no less than 700 meters.
Another important change in the amended Act is the addition of Article 6g, which imposes on the investor the obligation to allocate at least 10% of the installed capacity of the wind farm that is the subject of this investment to be taken over by the residents of the commune for a period of 15 years (Article 9), and this provision will enter into force on July 2, 2024.
The legislature plans to amend the Act of July 5, 2018, on Facilitating the Preparation and Implementation of Housing Investments and Associated Investments ("lex developer") by drafting an act amending acts to eliminate unnecessary administrative and legal barriers. The draft act envisages two significant changes. The first concerns the possibility of building housing estates on degraded lands, contrary to the provisions of the spatial development study, where buildings serving as office buildings or large-scale shopping centers were previously located. This change could undoubtedly help investors, and consequently, future buyers, with the current shortage of land for residential development.
However, the second of the planned changes is being viewed critically by investors . This involves the planned elimination of municipalities' current authority to determine the number of parking spaces for a given investment and the establishment of a rigid benchmark of 1.5 parking spaces for each new apartment in the development . According to the bill's justification, the change is intended to meet the current needs of residents. However, this will result in an increase in the price of each new investment due to the need to build larger underground garages. Consequently, investors will be forced to abandon planned investments due to their lack of profitability or to increase apartment prices, which in turn may result in a decrease in the number of apartment buyers. It should also be noted that some investments will not be possible at all, as the construction of underground parking will be excluded due to spatial or environmental constraints. In conclusion, the legislature may achieve the opposite of the intended result with this planned change. It is worth noting, however, that the Senate, in a resolution of February 22nd of this year, rejected the aforementioned proposal. A draft bill amending laws to eliminate unnecessary administrative and legal barriers. We are awaiting the Sejm's position.
On March 2, 2023, the Regulation of the Minister of Agriculture and Rural Development of January 13, 2023, on the technical conditions to be met by agricultural structures and their location . The provisions of the regulation specify the technical conditions to be met by agricultural structures and related construction equipment, as well as their location. Pursuant to §49 of the regulation, its provisions in their new wording do not apply to agricultural structures for which, before the regulation's entry into force, 1) a building permit has been issued or an application for such a decision has been submitted, or 2) construction has commenced that does not require a building permit.
Finally, one more important change, in accordance with the Act of October 7, 2022, amending the Act on the Energy Performance of Buildings and the Building Law, from April 28 this year, an obligation will come into force for entities planning to sell or rent a building, part thereof or premises, to provide an energy performance certificate , i.e. a document specifying the amount of energy required to meet the energy needs related to the use of the building (i.e. energy for heating and ventilation, hot water preparation, and in the case of non-residential buildings also lighting). The obligation to commission a certificate every 10 years has been excluded for existing buildings or premises that will not be the subject of a sales or lease agreement, i.e. those used "for their own use."
Of course, we are constantly monitoring the real estate market and have reviewed the latest proposals to combat patodeweloperka (a form of property development). However, these proposals are so general that we won't analyze them at this stage. You can read them on the official website of the Ministry of Development and Technology: https://www.gov.pl/web/rozwoj-technologia/stoppatodeweloperka .
Next week, we'll return to our analysis of the draft amendment to the Spatial Development and Planning Act. This time, it will focus on the general plan.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of April 3, 2023
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