The entry into force of the amendment to the Building Law and the introduction of one of the major changes to the act, namely the regulation of the procedure for legalizing unauthorized construction, raises many doubts not only regarding their substantive content but also regarding which regulations should be applied. Therefore, in today's alert, we will attempt to clarify when the provisions of the amended Building Law will apply, and when these regulations will be in force until September 18, 2020. First, it is necessary to determine whether the new regulations will apply in a given situation, and only then can they be applied.
In accordance with the fundamental principle arising from the transitional provisions of the act amending the Building Law, the current provisions apply to matters regulated by the Building Law that were initiated but not concluded before the amendment entered into force. Therefore, if an authority has already initiated legalization proceedings for the structure to be legalized before September 19, 2020, it will not be possible to benefit from the amended provisions, primarily the so-called simplified legalization procedure.
Therefore, in proceedings already initiated that would qualify for the simplified procedure, it will not be possible to avoid the obligation to pay a legalization fee, the need to submit a number of documents such as a complete construction design, or the authority's examination of the compliance of the plot or land development plan with the local spatial development plan.
Therefore, it is crucial to assess the timing of legalization proceedings. When should such proceedings be initiated? There are two options: initiating the proceedings ex officio or upon request.
The legalisation proceedings are initiated ex officio in particular on the day of delivery by the competent authority of a decision to suspend construction works (according to the old regulations) or construction (according to the new regulations).
In the case of proceedings upon request, the Code of Administrative Procedure indicates that the date of initiation of proceedings upon request of a party is the day on which:
- the request to initiate the proceedings has been delivered to the administrative authority;
- a request to initiate proceedings was entered into the IT system of a given administrative body (e.g. an e-mail with a request to initiate proceedings was sent to the body's address).
It therefore seems that if none of the above-mentioned situations occurred by September 19, 2020, it will be possible to use the simplified procedure for legalizing unauthorized construction.
Unfortunately, the legislature has complicated this situation by including another provision in the Act amending the Building Law, which states that the simplified legalization procedure will not apply to proceedings for which a demolition order has been issued. This raises the question of which of these transitional provisions will apply, a question that should be answered over time by administrative court rulings. A possible interpretation is that the simplified legalization procedure can be applied even in situations where proceedings were initiated before September 19, 2020, provided a demolition order has not been issued by that date. This would certainly be more favorable to those wishing to use this procedure. However, the direction of interpretation in this regard will have to wait a while.
We invite you to follow our October alerts, in which we provide you with information about the legalization of unauthorized construction. Next week, we will analyze the regulations regarding the simplified legalization of unauthorized construction.
This alert is for informational purposes only and does not constitute legal advice.
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