Tax & Legal Highlights for Real Estate – July 2020
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1. Dispute between the President of the Personal Data Protection Office and the Chief Land Surveyor
On 16th of June 2020, the Voivodeship Administrative Court in Warsaw issued a ruling (file no. II SA/Wa 979/20) concerning the dispute between the President of the Personal Data Protection Office and the Chief Land Surveyor, resulting from the issuance of the ruling by the President of the Personal Data Protection Office, obligating the Chief Land Surveyor to abstain from publishing land registers identification numbers on the internet platform called GEOPORTAL2, until the proper decision is issued. The ruling was appealed to the Voivodeship Administrative Court in Warsaw by the Chief Land Surveyor, where it was decided by the judges that the ruling made by the President of the Personal Data Protection Office would be upheld. According to the announcement made by the Personal Data Protection Office, the Court, after reviewing the case decided that it was not necessary to suspend the execution of the appealed ruling made by the President of the Personal Data Protection Office because, pursuant to Article 61 paragraph 4 of the Act of 30 August 2002 – law on proceedings before administrative courts, suspension of such rulings is only necessary when there is a danger of causing significant damage or causing effects difficult to reverse, what in opinion of the Court, was not the case in this matter. In the past, GEOPORTAL2 was a useful tool to check the properties of particular lands or buildings. Knowledge of the land and mortgage register’s number is essential in order to properly check the property for the right established on it, i.e. mortgages or easements. It should be noted however, that land and mortgage registers also contain data such as names, surnames or PESEL numbers of persons connected to the particular property which, according to the President of the Personal Data Protection Office, makes them a subject to the data protection laws. The dispute between the President of the Personal Data Protection Office and the Chief Land Surveyor is still ongoing and has led to the President of the Personal Data Protection Office issuing an administrative penalty of 100 000 PLN for the Chief Land Surveyor, for the infringements and negligence on his side.
2. COVID-19 versus conservation of the monuments
The SARS-CoV-2 virus pandemic has affected the economy and law significantly. The already well-known “Anti-Crisis Shields” are a governmental mechanism of minimizing the effects of the pandemic by dynamically adjusting the law. One of the changes introduced is the exemption from applying the provisions of the Act of 7 July 1994 – Construction law and the Act of 23 July 2003 – law on protection and care of monuments and other acts to activities of a construction nature, i.e. construction, reconstruction, renovation, maintenance, demolition, as well to changes in the use of buildings. These changes are specified in Article 12 of the Act of 2 March 2020 on special solutions related to the prevention, countering and combating COVID-19, other infectious diseases and crisis situations caused by them. In addition, Article 12b of the aforementioned Act provides for the application of provisions of Article 12 respectively in the event of the need to maintain the continuity of essential services for the direct prevention and combating of COVID-19. The exemptions from the aforementioned Acts give rise to a number of concerns regarding, inter alia, demolition, alteration of historic buildings, as well as construction works in general. At first glance, it might seem that the legislator has loosened the regulations for the duration of the pandemic in the entire scope mentioned above. However, attention should be paid to the term used in the regulations. All such construction activities may be carried out without provisions of Acts only in the case of activities undertaken “in connection with the COVID-19 counteraction”. This is a very general term, which in the opinion of many may lead to attempts to interpret it for particular purposes, e.g. to get rid of a historic object located in a convenient location for new investments. However, it is worth to remember about the obligation to inform the competent authority of architectural and construction administration about undertaking such works and their type, scope, method and date of commencement of works, or, in case of change in the use of the building – its current application. It is worth looking for proceedings related to infringements and attempts to use the changes, resulting from such hasty exclusion of a large scope of regulations.
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