In today's article as part of "Tuesday Mornings for Construction", we would like to invite you to continue the series on the right of first refusal and to focus on the issue of the right of first refusal granted to the National Property Resource.
The National Real Estate Resource (hereinafter also referred to as "KZN" or "Institution") is a state legal entity overseen by the Minister of Infrastructure and Construction. It was established under the Act on the National Real Estate Resource of 20 July 2017 (Journal of Laws of 2023, item 1688, as amended). KZN exercises ownership and other property rights in relation to real estate included in the Resource on behalf of the State Treasury. The most important tasks of this Institution include managing the real estate included in the Resource, creating conditions for increasing housing availability, undertaking activities aimed at implementing housing investments, creating conditions facilitating the construction of municipal housing, supporting the development of social rental and municipal housing, and exercising rights attached to shares or stocks owned by the State Treasury.
So what real estates are included in the National Real Estate Resource? These are primarily properties owned by the State Treasury, but also include properties entrusted to the National Support Center for Agriculture and the Military Property Agency that have not been granted perpetual usufruct. The Resource also includes properties held in perpetual usufruct by the State Treasury, managed by the relevant authorities, as well as properties owned by State Treasury companies, and properties owned by the State Treasury that are held in perpetual usufruct by State Treasury companies. Pursuant to Article 2, Section 2 of the aforementioned Act, the Resource also includes properties acquired by the National Support Center for Agriculture on behalf of the State Treasury.
Now that we've established what the National Property Resource (KZN) is and what constitutes its Resource, let's determine in what cases the National Property Resource (KZN) has the right of first refusal. This issue is particularly important, as failure to honor the right of first refusal results in the invalidity of the real estate sales agreement or the right of perpetual usufruct to the real estate. This issue is addressed in Articles 30a and 65a of the Act of 20 July 2017 on the National Property Resource (Journal of Laws of 2023, item 1688, as amended).
Under Article 30a of the aforementioned Act, the National Real Estate Resource has the right of pre-emption in favor of the State Treasury over real estate owned or held in perpetual usufruct by a state legal entity referred to in Article 3 of the Act of December 16, 2016, on the principles of state property management (Journal of Laws of 2020, item 735), including the Office of Technical Inspection, the Social Insurance Institution, the National Health Fund, the Polish Air Navigation Services Agency, the Financial Ombudsman, a state cultural institution, or a state bank. It is worth noting, however, that this right cannot be exercised in the event of the sale of a residential premises or premises for other purposes, together with associated rooms, within the meaning of the Act of June 24, 1994, on Ownership of Premises, and a share in common real estate. The above rule regarding the right of pre-emption also does not apply to real estate developed with a single-family residential building in the case of a person who has a statutory right of pre-emption to acquire such real estate.
Next, pursuant to Article 65a, Section 1 of the aforementioned Act, the Institution has a right of pre-emption in the case of the sale of real estate or the right of perpetual usufruct to real estate, if it was previously acquired by the seller from KZN through a real estate sale tender. As follows from the same legal basis, the right of pre-emption also applies to undeveloped real estate or the right of perpetual usufruct to undeveloped real estate previously acquired by the seller from the Institution pursuant to Article 65, Section 1 of the KZNU – that is, when such real estate was acquired to obtain financial resources for the implementation of the tasks referred to in Article 5 of the Act (partly listed in the first paragraph of this Article), in which case KZN may, with the consent of the minister responsible for regional development, sell and grant perpetual usufruct to real estate included in the Resource, not intended for the implementation of housing investments or technical development.
Pursuant to Article 65a, sections 2-7 of the aforementioned Act, in the event of the sale of real estate or perpetual usufruct of real estate subject to the KNZ's right of first refusal, the notary preparing the sales agreement is obligated to provide the Institution with a copy of the notarial deed covering the sales agreement within three days of the date of conclusion of the agreement. The President of the KZN may then exercise this right within one month of receiving notification of the content of the sales agreement. The President of the KZN exercises the right of first refusal by submitting a declaration in the form of a notarial deed to the notary who provided the copy of the agreement. If submitting the declaration to this notary is impossible or encounters significant difficulties, it may be submitted to another notary. Upon submission of the declaration of exercise of the right of first refusal, the real estate becomes the property of the State Treasury and is transferred to the Treasury if the exercise of the right of first refusal concerned the sale of real estate. Conversely, if the exercise of the right of first refusal concerned the sale of perpetual usufruct, the right of perpetual usufruct expires. The right of first refusal is exercised at the price agreed upon between the parties in the sales agreement. In turn, the notary delivers an extract from the notarial deed containing the declaration of the President of the National Property Tribunal to the seller within three days of the declaration being made.
Next week we will summarize for you the changes in the law that have occurred over the last month – we cordially invite you to read it.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of June 25, 2024
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