Tax & Legal Highlights for Real Estate – September 2020
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1. Amendment to the Construction Law
On 19th September 2020, a significant amendment to the Construction Law, adopted by the act of 13th February 2020 amending the Construction Law and certain other acts (“Act”), entered into force. Among other things, under the Act, the legislator has systematized the list of types of building structures and categories of construction works which require neither a building permit nor a notification. As a consequence of this amendment, all practical doubts related to the placement of small structures such as: a parcel locker, ticket machine, a cash machine or an automatic machine up to 3 m high used to perform other types of services, were clarified. In the case of these facilities, the obligation to obtain a building permit and make a notification will be cancelled. The amendment results from a controversial judgment of the Voivodship Administrative Court in Łódź of 17th January 2019, file no. II SA/Łd 761/18, in which the court held that placement of a parcel locker requires a building permit. Undoubtedly, this change in law is a simplification and makes the process less formal, as it release the investor from an obligation to submit a number of documents in case of construction of these facilities, e.g. a construction project along with appropriate arrangements and opinions or a land development project,. On the other hand, one might not deny the relevance of statements expressed by some experts that lack of the control over the placement of these building structures may cause chaos in the public space if no authority has adequate instruments to control the location of the next parcel locker or cash machine.
2. Monetary compensation instead of return of the property in kind
On 14th August 2020 Sejm almost unanimously adopted an amendment to the Act of 9th March 2017 on special rules on removing legal effects of reprivatization decisions concerning real properties in Warsaw, issued in violation of the law and the Act on property management. Modification of Article 214a of the Act on property management, which contains the so-called ” negative decree prerequisites”, can be regarded as the most important change that would be introduced by the aforesaid amendment. The catalogue of these prerequisites was significantly extended in the adopted draft, which states that the eligible person will be refused the right of perpetual usufruct, if, among others, at least one resident lives on the property, the property is intended for the purposes of science, education and culture or is located in recreational complexes or green areas, and also if the property or a part of it is covered by a lease agreement for residential premises, as well as if it would be impossible to reconcile the return with the proper formation of neighbourly relations.
The above means that if the amendment enters into force, a monetary compensation instead of return of the property in kind will become the rule. The Ministry of Justice argues that the proposed solution allows to withhold the most drastic consequences of reprivatization, in the form of eviction, of often long-term tenants of premises which are part of the communal housing.
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