In today's article from our series, "Tuesday Mornings for the Construction Industry," we decided to analyze the recent judgment of the Supreme Administrative Court (" NSA ") regarding the legal assessment of changes to the layout or the existence of partition walls in a residential unit without a notification or building permit. This judgment was issued on December 5, 2023, under reference number II OSK 500/21 , and is final and binding (" Judgment ").
At first glance, the facts of the case seemed straightforward and straightforward – it involved work being carried out in an apartment in a multi-family residential building, including the demolition of several partition walls DBI took an official interest in these works and initiated administrative proceedings regarding construction work related to the reconstruction of the apartment, carried out without the required consent of the relevant architectural and construction authority. During the inspection, it was determined that the construction work consisted of demolishing partition walls and removing all flooring (including the ceiling structure). The DBI suspended the work and required the investor to submit, among other things, an architectural and construction inventory of the work performed and a technical report on the method and correctness of the construction work.
Despite the submitted explanations and documents, the authority issued a decision to discontinue the apartment's renovation work. The appeals body overturned the decision and referred the case to the Building Inspectorate for reconsideration. Following the reconsideration, the Building Inspectorate issued a decision ordering the demolition of the work carried out despite the suspension, including two partition walls separating the bathroom. The body emphasized that the investor could not continue any work until the date of the decision.
Subsequently, following an unsuccessful appeal, the investor filed a complaint with the Provincial Administrative Court in Kraków ("PAC"). According to the PAC, the decisions of the administrative authorities of both instances were subject to annulment – the legal classification of the construction works adopted by them was incorrect. The PAC indicated that the construction works carried out by the investor – i.e., among other things, the erection of two partition walls separating a bathroom – did not constitute reconstruction within the meaning of Article 3, item 7a of the Building Law . In its justification, the court stated that the works carried out should not be classified as interfering with the structure of a building, thus leading to a change in the functional or technical parameters of the existing building. Since a partition wall is not a structural element of the building, does not affect its intended use or technical condition, and does not determine the spatial separation of independent residential premises constituting the subject of separate ownership, activities consisting in the demolition of such a wall or its construction are construction works that do not require a building permit or notification to the competent authority . The PAC also cited the practice in renovations carried out on the real estate market – in the Court’s opinion, demolishing and erecting partition walls is a type of work commonly used – assuming that this is a form of reconstruction of a building and requires a building permit or even a notification would constitute excessive and unjustified formalism.
A party to the proceedings – the housing association of the building where the work was carried out – filed a cassation appeal against the investor's favorable ruling of the Provincial Administrative Court. As a result of this appeal, the Supreme Administrative Court issued a judgment in which the adopted interpretation was diametrically opposed to that presented by the court of first instance. The Supreme Administrative Court emphasized that work involving the relocation of partition walls (i.e., demolishing the existing walls and erecting them in a new location) constitutes reconstruction not only when it concerns load-bearing walls . According to the Supreme Administrative Court, the construction of partition walls in a separate residential unit within a multi-family residential building constitutes reconstruction if it results in a change in the floor area of the premises, as this constitutes a change in the functional parameters referred to in Article 3, Section 7a of the Building Law .
If the presented interpretation were accepted as correct, it would mean that any change in the position of internal partition walls in the premises constitutes a reconstruction for which a building permit is required.
This position differs significantly from previous case law. Until now, it was assumed that demolishing partition walls inside a premises cannot be classified as reconstruction of a building within the meaning of Article 3, item 7a of the Building Law. It was argued that modifying the internal appearance (and surface area) of individual rooms does not in any way change the actual functional or technical parameters of the entire building, does not affect its cubic capacity, footprint, height, length, width, or number of storeys, and consequently cannot be considered construction works within the meaning of Article 3 point 7 of the Building Law (see, among others, judgment of the Supreme Administrative Court of 12 January 2007, file reference II OSK 460/06; judgment of the Supreme Administrative Court of 25 January 2013, file reference II OSK 627/12; judgment of the Supreme Administrative Court of 9 January 2018, file reference II OSK 750/16; judgment of the Regional Administrative Court in Kraków of 7 October 2020, file reference II SA/Kr 1250/16). Thus far, it has been assumed that the demolition of a partition wall, which is not a structural element of a building, does not change either the functional or technical parameters of the existing building. After the demolition of a partition wall, no technical or functional parameters of the building should change. Therefore, work concerning the layout or existence of partition walls was classified as interior design in the broad sense. Such work was not considered construction work for which a building permit would be required.
Let us recall that in Poland there is no case law, and the issued judgment is binding only on the parties to the proceedings. Therefore, we hope that the presented interpretation will not be adopted in practice. In our opinion, it is overly formalistic and contrary to the direction of the recent amendments to the Construction Law, which aim to expand the list of works that do not require a building permit or notification, rather than broaden it.
In our opinion, this is such an interesting judgment that we will present a summary of the changes in the law, or rather their announcements from March, next week.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of April 2, 2024
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