One of the more spectacular changes introduced by the amendment to the Construction Law is the so-called simplified procedure for the legalization of unauthorized construction, which has been in force since Saturday, September 19, 2020. Today's alert is dedicated to this very issue.
Article 49f of the Building Law stipulates that the simplified legalization process may apply to all buildings subject to the requirement to obtain a building permit or submit a notification. However, this process will only apply to unauthorized construction involving the construction of buildings or parts thereof, if at least 20 years have passed since the construction was completed . According to the definition of "construction" in the Building Law, this also includes the reconstruction, expansion, and superstructure of such buildings.
It is therefore necessary to specify when the simplified legalization procedure will not be possible . This will be the case if the authority has already initiated legalization proceedings before the 20-year deadline. Initiating the simplified legalization procedure will also preclude the issuance of a decision ordering the demolition of the structure before that date, as well as the issuance by the construction supervision authority of a decision to suspend construction before the 20-year deadline. The procedure will also not apply to reconstruction (as it is not the same as construction), nor to unauthorized construction involving other construction works. Importantly, the simplified legalization procedure does not apply to structures used to meet recreational needs in buildings located within Family Allotment Gardens.
The simplified legalization procedure is conducted ex officio, not upon request . However, submitting an "application"/request to the relevant authority to initiate proceedings may be considered grounds for initiating proceedings ex officio. Under the simplified legalization procedure, the supervisory authority will require the party to submit legalization documents within no less than 60 days of the date of delivery of the decision. Legalization documents include:
- declaration of disposal of real estate for construction purposes;
- post-construction inventory surveying of a construction object;
- a technical opinion prepared by a person with construction qualifications, indicating whether the technical condition of the building does not pose a threat to human life or health and whether it allows for the safe use of the building in accordance with its current or intended use.
Therefore, under the simplified legalisation procedure, there will be no obligation to provide the authority with a building design and a certificate of compliance of the construction with the provisions of the local development plan or the decision on development conditions.
At the end of the simplified legalization process, the construction supervision authority will issue a legalization decision if the legalization documents are complete and the technical report indicates that the technical condition of the building does not pose a threat to human life or health and allows for safe use of the building, consistent with its current or intended use. Furthermore, legalization conducted under the simplified procedure will not incur any legalization fees.
If the procedure is unsuccessful, the authority will issue a decision ordering demolition. It should be emphasized, however, that meeting the formal legalization requirements obliges the authority to issue a legalization decision (a so-called binding decision). The legalization decision constitutes the basis for the use of the building. This means that there is no additional obligation to complete a separate procedure related to approving the legalized building for use.
As every week, we invite you to follow our October alerts, in which we provide you with information on the legalization of unauthorized construction. Next week, we will discuss the issue of legalization in the absence of a monument conservator's consent to carry out the work.
We would also like to invite you to participate in the next webinar organized by our law firm, which will take place on Tuesday, October 27, 2020, at 10:00 a.m. The webinar will be dedicated to the legalization of unauthorized construction. This will certainly be an opportunity to ask questions, so if you have any, please send them to: j.barzykowska@kglegal.pl. Details of the training can be found by clicking the link below:
https://kglegal.clickmeeting.com/legalalizacja-samowoli-budowlanej/register
This alert is for informational purposes only and does not constitute legal advice.
author:
