Continuing our series on pre-emptive rights as part of "Tuesday Mornings for Construction Workers", in today's article we will focus on restrictions on the sale of real estate located within the boundaries of national parks.
It's not uncommon for a property we're interested in purchasing to be located within the boundaries of a national park. While the proximity to nature and beautiful views of the surrounding areas are undoubtedly eye-catching and a significant advantage of such a location, it's definitely worth keeping in mind certain specific legal regulations that the legislature has provided for such cases.
Regardless of the fact that such real estate, as in other cases, should be analyzed in great detail from a legal perspective to identify potential risks associated with its purchase, we must not lose sight of the fact that national parks, as a form of nature conservation, are subject to the provisions of the Nature Conservation Act of 16 April 2004 (Journal of Laws No. 92, item 880, as amended). Therefore, the Nature Conservation Act provides in Article 10, Section 5, that a national park has the right of first refusal to purchase real estate located within the national park's boundaries. This right is held by the State Treasury, and in practice, the national park within whose boundaries the property is located is authorized to exercise it.
The concept of national park boundaries is particularly important because such boundaries are subject to change. The Nature Conservation Act defines national parks as areas of exceptional natural, scientific, social, cultural, and educational value, with an area of at least 1,000 hectares, where all natural and landscape features are protected.
Therefore, before deciding to purchase a property located in close proximity to a national park, we should verify whether it currently lies within the park's boundaries. The definition and modification of national park boundaries can be found in the relevant regulation of the Council of Ministers. Additionally, the location of national parks can be verified via the Geoserwis mapping system, operated by the General Directorate for Environmental Protection.
If it turns out that the real estate we are interested in purchasing is located within a national park, we can only acquire such real estate if the State Treasury – acting through a given national park – does not exercise the right of pre-emption it is entitled to under the above-mentioned Act.
The national park, acting through its governing body, the national park director, has a one-month deadline to exercise this pre-emptive right. This deadline begins on the date the national park director receives notification of the concluded conditional sales agreement. In such a situation, the sales agreement is concluded subject to the non-exercise of the pre-emptive right. Otherwise, the concluded agreement will be absolutely null and void. This notification is delivered to the national park director by the notary public who prepared the conditional sales agreement.
The director of the national park exercises his right of pre-emption by submitting a declaration in the form of a notarial deed to the notary who prepared the conditional purchase agreement. However, if submitting the declaration to such a notary is impossible or encounters significant difficulties, it may be submitted to another notary. If such a declaration is submitted, it is immediately delivered by the notary to the seller of the property.
Generally, the national park director exercises the right of first refusal to purchase real estate at the price agreed upon by the parties in a conditional real estate sale agreement. However, the Act provides mechanisms for judicial review of the price of such real estate. Such mechanisms are implemented at the request of the national park director, who, if he or she believes the price of the property being sold significantly deviates from its market value, may petition the court to determine the price. This right, of course, is not indefinite, therefore the national park director is limited to 14 days to petition the court to determine the appropriate price.
As you yourself have noted, the regulations provide for a number of instances in which a given entity is entitled to pre-emption rights over real estate. Therefore, situations can often arise where, with respect to a single property, certain entities are entitled to pre-emption rights, stemming from other acts or, for example, contractual arrangements (so-called contractual pre-emption rights). The legislature, within the Nature Conservation Act, has anticipated this possibility and stipulated that in the event of a conflict of pre-emption rights, the national park will have priority in exercising such rights. However, please remember that the relevant provision only specifies priority in exercising such pre-emption rights, not exclusivity. Therefore, if there is a conflict of pre-emption rights over a given property and the director of the national park fails to exercise his authority, the other entities holding such rights may subsequently exercise such rights.
Therefore, only at the end, i.e. in a situation where none of the entities is entitled to the right of pre-emption (due to the expiry of the deadlines for submitting declarations on the exercise of the right of pre-emption or due to the fact that the entitled parties have submitted declarations within the deadlines that they will not exercise the right of pre-emption), can we proceed to conclude an agreement on the transfer of ownership of the real estate, as a result of the execution of the concluded conditional real estate sale agreement.
In summary, it's worth mentioning that because park boundaries change, a situation may arise in which a property that wasn't originally within a national park's boundaries may be incorporated into the national park as a result of such a change. Of course, the property owner may not consent to the incorporation of their property into the national park, but in such a situation, there's a risk of expropriation proceedings being initiated, in which the property owner will have the rights of a party and the ability to appeal the decision in court. It's worth emphasizing that in each case, the property owner is entitled to compensation for the expropriated property.
At this point, we would like to invite you to read our next article in the series on the right of pre-emption, which will be published next week as part of our Tuesday Mornings for Construction and will concern the pre-emption of the National Property Resource.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of June 18, 2024
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