In today's Tuesday Morning for Budowlanka we continue discussing issues related to pre-emption, but today we want to focus on those that are slightly less common in practice.
Pre-emption of real estate located in ports and marinas
This right of first refusal is regulated in Article 4 of the Act of 20 December 1996 on Seaports and Harbors. The entity managing a port or harbor has the right to (i) preemption upon sale, (ii) priority upon granting perpetual usufruct and transferring the right of perpetual usufruct, with respect to real estate located within the boundaries of the port or harbor. The provisions on the right of first refusal apply accordingly to this right of first refusal. If the entity managing the port or harbor does not exercise its right of first refusal or priority, this right belongs to the State Treasury. If no entity managing the port or harbor has been established, the right of first refusal belongs to the municipality with jurisdiction over the location of the real estate.
Preemptive and priority rights with respect to real estate located within the boundaries of a naval port or bordering restricted areas designated by the Minister of National Defense are exercised by the relevant organizational units subordinate to or supervised by the Minister of National Defense, over and above the rights of port managers or municipalities. In such cases, the notary submits a copy of the notarial deed to the Minister of National Defense.
The sale, transfer of perpetual usufruct or granting of perpetual usufruct of real estate made in violation of the right of pre-emption or priority specified in the Act on Sea Ports and Harbours are invalid.
The managing entity, the State Treasury, municipalities, and organizational units subordinate to or supervised by the Minister of National Defense, exercise their pre-emptive rights and priority rights to grant perpetual usufruct or transfer perpetual usufruct by submitting a declaration in the form of a notarial deed within six months of receiving a copy of the notarial deed from a notary. This six-month period applies jointly to all authorized entities.
Real estate located in the Special Economic Zone
If the property is located within a special economic zone, the zone administrator has the right of first refusal with respect to ownership and perpetual usufruct. This is provided for in Article 8, Section 2 of the Act of 20 October 1994 on Special Economic Zones ("SEZ Act").
A Special Economic Zone is an uninhabited part of the territory of the Republic of Poland, designated in accordance with the SEZ Act, within which business activity may be conducted under the terms specified therein. A zone may be established to accelerate the economic development of a part of the country's territory, in particular by: (i) developing specific areas of economic activity, (ii) developing new technical and technological solutions and implementing them in the national economy, (iii) developing exports, (iv) increasing the competitiveness of manufactured products and services provided, (v) developing existing industrial assets and economic infrastructure, (vi) creating new jobs, (vii) utilizing untapped natural resources while maintaining ecological sustainability. Special Economic Zones are established by the Council of Ministers, upon request of the minister responsible for economic affairs, by regulation. A zone may be established only on land owned by the administrator, the State Treasury, a sole-shareholder company of the State Treasury, a local government unit, or a municipal association, or land held in perpetual usufruct by the administrator or a sole-shareholder company of the State Treasury. A zone may also be established if the acquisition of the right to land by the administrator or a local government unit results from a binding agreement which provides for the establishment of a zone as the only condition for acquisition.
Due to the ownership right to the premises
Pursuant to Article 17(2)(6) of the Act of 15 December 2000 on Housing Cooperatives, the subject of the transfer may be a fractional portion of a cooperative ownership right to a unit. In such a case, the remaining joint owners of the ownership right to the unit have a right of first refusal. An agreement to transfer a fractional portion of the ownership right to the unit concluded unconditionally, without notifying the entitled parties of the transfer, or with disclosure of material provisions of the agreement that are inconsistent with the facts, is invalid.
Act on the development of land communities
The right of first refusal is also found in the Act of 29 June 1963 on the Development of Community Land. Pursuant to Article 26, Section 2 of that Act, in the event of the sale of real estate constituting community land, the municipality has the right of first refusal. According to the Act, community land includes agricultural and forest properties, as well as water areas granted as a result of the enfranchisement of peasants and townspeople-farmers for common ownership.
For the benefit of a local government unit resulting from the Act on enforcement proceedings in administration
If real estate is located in an area designated for public purposes in the local zoning plan, the enforcement authority conducting enforcement pursuant to the Act of 17 June 1966 on Administrative Enforcement Procedure, before commencing the description and estimation of the property's value, shall request the relevant local government unit to declare within three months of the date of service of the request whether it will exercise its right of pre-emption. If the local government unit fails to exercise its right of pre-emption, or if the enforcement authority is not served with a declaration of this within the specified timeframe, the right of pre-emption expires. If the declaration of exercise of the right of pre-emption is delivered to the enforcement authority within the specified timeframe, the authority shall determine the purchase price at an amount corresponding to the value of the seized property, as determined by a real estate appraiser. The decision regarding the purchase price has the effect of a final decision. This decision shall be served on the local government unit, the obligated party, and the creditor. This decision may be appealed.
As seen above, the right of first refusal applies in many different cases and before selling or purchasing our property, it is necessary to carefully examine whether it will apply and to whom, as the consequences of omitting it are extremely severe.
This article concludes our series on pre-emptive rights. Therefore, we invite you to read our next article in our Tuesday Mornings for Construction series, which will focus on the most interesting interpretations of the General Office of Building Control regarding construction design.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of July 15, 2024
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