In today's Morning for the Construction Industry, we would like to present to you the changes in the law that took place in September 2022 and which may prove important for the real estate industry.
Groundbreaking judgments of the Supreme Administrative Court on reprivatization
On August 29, 2022, the Supreme Administrative Court issued judgments in four cases concerning Warsaw reprivatization (I OSK 707/20, I OSK 1717/20, I OSK 2034/20, I OSK 2875/20). To date, only the judgment in case I OSK 2034/20 has received a written justification.
The Supreme Administrative Court (SAC) indicated that the provisions of the Warsaw Decree do not create a substantive legal norm that would give parties to agreements on the acquisition of rights and claims a legal interest in administrative proceedings conducted to grant the rights specified in the Warsaw Decree. In the SAC's opinion, the civil law basis for concluding an agreement on the acquisition of claims does not itself create a legal interest in administrative proceedings conducted under the Warsaw Decree. Such an agreement cannot modify the statutorily defined scope of rights regulated by the Warsaw Decree. The SAC stated that "Since the legislature declared in the decree to compensate Warsaw landowners for the deprivation of their ownership rights by granting the rights specified in the aforementioned decree, the entities entitled to this right cannot, by their own will, change the legislature's will and designate a different addressee of this right." The rulings constitute a precedent and may lead to a change in the current line of case law.
Proposed changes to the Act on the Energy Performance of Buildings and the Construction Law
Parliamentary work is underway on a draft amendment to the Act on the Energy Performance of Buildings and the Building Law. The act clarifies the existing obligation to provide an energy performance certificate upon the sale or lease of a building or premises. Currently, the owner, manager of a building, or person holding a cooperative ownership right to a premises or a cooperative tenancy right to a premises is obligated to provide an energy performance certificate upon entering into a sales agreement or the transfer of a cooperative ownership right to a premises, or a copy thereof upon entering into a lease agreement. Under the proposed amendments, a notary will be obligated to record the transfer of an energy performance certificate to the buyer in the notarial deed and, if the certificate is not provided, will instruct the entity obligated to provide it of a fine for failure to comply with this obligation. Furthermore, the act passed by the Sejm amends Article Article 57 of the Building Law introduces the obligation to attach to the notification of completion of construction of a building or an application for a building permit a copy of the energy performance certificate submitted in paper form or a printout of the energy performance certificate submitted in electronic form in the case of buildings, excluding buildings referred to in Article 3, Section 4 of the Act of August 29, 2014, on the Energy Performance of Buildings (i.e., industrial and farm buildings not equipped with energy-consuming installations, excluding built-in lighting installations, residential buildings intended for use no longer than 4 months a year, or detached buildings with a usable area of less than 50 m² ). This obligation will not apply to notification of completion of construction of detached single-family residential buildings of no more than two stories with a building area of up to 70 m² , the impact area of which falls entirely on the plot or plots on which they were designed, and the construction is carried out to meet the investor's own housing needs. The bill is currently being processed in the Senate.
Completion of the stage of reviewing the proposed changes in spatial planning.
A report on the consultations on the draft bill amending the Spatial Planning Act and certain other acts has been published on the Government Legislation Centre website. Following consideration of comments, some provisions of the bill will be changed. Following consideration of numerous comments regarding the new method of calculating planning fees, the proposed changes are to be removed from the draft bill. In addition, comments related to, among other things, the following issues have been addressed:
- the lack of connection between the planning fee and the sale of real estate,
- 5-year validity period of the decision on development conditions,
- waiving the obligation for railway infrastructure managers to issue opinions on the draft general plan due to the already established obligation to consult it with the President of the Office of Rail Transport,
- clarifying the definition of the above-ground storey,
- supplementing the bodies issuing opinions on the draft general plan by adding opinions from the competent authority of the State Fire Service regarding plants posing a risk of a serious industrial accident,
- introducing the concept of building height and building intensity,
- removal of the urban and architectural concept from the scope of the ZPI application,
- in the conditions for issuing a decision on development conditions, the reinstatement of the wording "continuation" in the case of the so-called good neighbor principle,
- introducing provisions authorizing the repetition of public consultations in the event of changes to investments that significantly impact the environment,
- clarifying the definition of the terrain front and the height of the facility,
- clarification of the notification of property owners about unsettled legal status,
- changing the definition of public greenery,
- liberalization of the possibility of locating photovoltaic installations outside production areas, provided that these devices are installed on existing buildings,
- extending the scope of application of the simplified procedure for preparing and adopting a local development plan to all types of renewable energy installations, regardless of their installed capacity and regardless of whether they constitute projects with a significant impact on the environment,
- removal of the provision under which the local plan could amend the general plan, which replaces the existing condition studies.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of September 30, 2022
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