This week, as we continue our analysis of selected provisions of the Act of 23 July 2003 on the Protection and Care of Monuments (the " Monument Protection Act "), we would like to highlight the rights and obligations of property owners under conservation protection. It's worth noting first that the right to limit an owner's rights in relation to monuments stems directly from the Constitution of the Republic of Poland and can be exercised through statutory instruments. However, this does not mean that this right is absolute, and owners have the right to challenge decisions in this regard, including during the proceedings for entry in the register of monuments, to appeal against decisions issued, and, if the property loses its historic value, to request its deletion from the register.
The scope of care for a monument provided by an owner is primarily defined in Article 5 of the Monument Protection Act. According to this provision, care for a monument provided by its owner or possessor consists, in particular, of ensuring the following conditions:
1) scientific research and documentation of the monument;
2) conducting conservation, restoration and construction works on the monument;
3) securing and maintaining the monument and its surroundings in the best possible condition;
4) using the monument in a way that ensures the permanent preservation of its value;
5) popularising and disseminating knowledge about the monument and its significance for history and culture.
This is, of course, not an exhaustive list, and additional obligations may be imposed on property owners. Generally speaking, however, property owners should strive to maintain their heritage property in the best possible condition for as long as possible and to utilize it to its fullest potential for the public good. This stems from the fact that the heritage property is no longer solely the owner's private property, and the obligation to care for it is statutory in nature. A specific obligation applies to any work or construction on the heritage property, but we'll write more about that next week.
Obligations towards monuments also arise from the provisions of other acts and apply primarily to real estate that has been entered in the register of monuments (we wrote about other forms of protection in #72 ). Many such restrictions on property rights arise from the Act of 21 August 1997 on Real Estate Management ("AGM").
One significant limitation occurs in the proceedings aimed at dividing real estate entered in the register of monuments. Such a division requires permission from the provincial conservator of monuments (Article 96, Section 1a of the Land and Monuments Management Act). This permission is issued by the relevant provincial conservator of monuments in a separate proceeding in the form of an administrative decision. The decision, in turn, constitutes a necessary annex to the division application. As indicated in case law, approving a division project without the consent of the provincial conservator constitutes a flagrant violation of the law, and consequently, the division decision is invalid.
Moreover, in the case of the sale of real estate entered in the register of historical monuments or perpetual usufruct of such real estate, the municipality has the right of first refusal. This means that if an entry is made in Section III of the relevant land and mortgage register indicating the right of first refusal, the sale, regardless of whether the property is built on or not, can only proceed if the municipality does not exercise its right. Failure to conclude a conditional agreement will result in the invalidity of the sales agreement.
It's worth remembering that when the State Treasury or a local government unit owns real estate , the sale, exchange, donation, or lease of real estate entered in the register of monuments also requires the consent of the provincial conservator of monuments – such consent must be given in writing and attached to the agreement (Article 13, Section 3 of the Land and Monuments Management Act). In turn, if real estate entered in the register of monuments is transferred for perpetual usufruct or permanent management, when determining the manner of its use, the perpetual usufructuary/manager may be obligated to rebuild or renovate the historic buildings located there, within the time specified in the agreement (Article 29, Section 2 and Article 45, Section 2a of the Land and Monuments Management Act).
It is also worth pointing out that in a recent resolution of February 26, 2021, the Supreme Court stated that "the mere establishment of an easement of necessary right-of-way (Article 145 of the Civil Code) does not mean a change in the purpose of a monument entered in the register or the manner of use of that monument within the meaning of Article 36, paragraph 1, item 9 of the Act of July 23, 2003 on the Protection and Care of Monuments" (reference number III CZP 21/20). The powers of the provincial conservator of monuments are therefore broad, but they are also subject to limitations.
On the other hand, the owner has certain rights. First of all, they can be exempt from real estate tax. Article 7, section 1, item 6) of the Act of January 12, 1991, on Local Taxes and Fees, provides that " land and buildings individually entered in the register of monuments are exempt from real estate tax, provided they are maintained and conserved in accordance with the regulations on the protection of monuments, with the exception of parts occupied for business purposes ." Also, pursuant to Article 73, section 4 of the Act on Local Taxes and Fees, if a property is entered in the register of monuments, the competent authority grants a 50% discount on the perpetual usufruct fee , and with the consent of the voivode, council, or regional assembly, the competent authority may increase or decrease this discount. Please note that both exemptions apply only to monuments entered in the register of monuments, and individually. Therefore, they do not apply to cases where, for example, a building is located within a historic urban layout or a historic building complex. Entry in the register of monuments also does not entitle the owner to an exemption. In addition, owners of monuments can apply for various types of funding, grants and other forms of support to support the care of the monument – we will also write about these possibilities in a separate article.
In summary, placing a property under one of the forms of protection provided for in the Monuments Protection Act imposes a number of additional obligations on the property owner, limiting their ownership rights. These restrictions stem not only from the Monuments Protection Act but also from a number of other acts. Therefore, every owner should familiarize themselves with the obligations and rights associated with registering a property.
We would also like to inform you that at its last session on October 14, the Sejm rejected the Senate's motion to reject the Act of September 17, 2021, amending the Building Law and the Spatial Planning and Development Act . Therefore, the Act will now be submitted to the President, and if he signs it, the changes we described in Article #71 will enter into force two months after the date of its publication in the Journal of Laws .
Next week we will prepare an article for you in which we will indicate what investors who intend to invest in real estate subject to protection under the Act on the Protection and Care of Monuments should pay attention to.
This alert is for informational purposes only and does not constitute legal advice.
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