Tax & Legal Highlights for Real Estate – October 2020
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1. Subsequent changes to the Waste Database
The Minister of Climate has forwarded to public consultation a draft amendment to the Waste Act of 14 December 2012 (“Draft”) which provides that entities registered in the Waste Database (“BDO”) will be obliged to register information on issued invoices or receipts executed on the basis of the Waste Transfer Note or the Municipal Waste Transfer Note. For this purpose, an additional module will be created within the BDO – “Register of invoices and receipts”. The Draft assumes that relevant data on issued invoices should be entered into the BDO by the twenty-fifth day of the month following the month in which the given receipt or invoice was issued. Lack of timely completion of the data in the BDO may result in a fine of up to PLN 5,000. It is assumed that the said amendment is to enter into force from 1 January 2021.
Pursuant to the assumptions of the Minister of Climate, the amendment to the Waste Act is to reduce the so-called “black economy” in the waste sector in Poland and simultaneously increase revenues to the Polish state budget, as the National Revenue Administration (pol. Krajowa Administracja Skarbowa) will be entitled to verify and compare the data contained in the BDO with data from fiscal systems of individual entrepreneurs. However, experts emphasize that adding further modules to the electronic BDO, the launch of which has already been postponed several times (currently to 1 January 2021) may cause further technical problems related to the proper functioning of the BDO.
2. Lack of requirement for the consent of the former investor to transfer the decision on the building permit
Article 40 item 1 of the Construction Law provides that the authority issuing the decision on the building permit is obliged to transfer such permit at the request of a new investor if the investor attaches to the application a statement on taking over the conditions contained in the decision on the building permit and on the right to use the land for construction purposes together with the consent of the former investor in favour of whom the decision was issued.
In the amendment to the Construction Law, which came into force on 19 September 2020, item 1a was added to Article 40, stating that the consent of the former investor is not required if the ownership of the real estate or rights resulting from the perpetual usufruct to the real estate covered by the building permit after the issuance of that permit had been transferred from the former investor to the new investor applying for the transfer of the building permit.
As presented in the explanatory memorandum to the amendment, it should be assumed that the purpose of the sale of the real estate on which construction has started is to purchase the real estate together with the construction and rights to its further execution. The above will constitute a significant simplification for real estate purchasers, but it should be stressed that the consent of the former investor to transfer the permit is not required only if the former investor is at the same time the previous owner or perpetual usufructuary of the real estate. If the building permit has been issued to another entity, its consent will still be necessary to transfer the decision to a new buyer of the property.
3. Simplification of the legalisation procedure
On 19 September 2020, the provisions of the Act of 13 February 2020 on amending the Construction Law and certain other acts entered into force. The amendments to the provisions included the introduction of a simplified legalisation procedure in the articles 49f, 49g, 49h and 49i of the Act of 7 July 1994 – Construction Law, applicable to construction objects erected without relevant permits or notifications within 20 years from the completion of construction. In these cases, the entire procedure is simplified in the scope of the authority’s waiving of the examination of the conformity of a construction with local master plans or zoning permits. In the course of this procedure, the construction supervision authority shall examine whether the construction is causing a threat to life or health. If such a condition occurs, an obligation will be imposed to immediately secure the construction or its part and remove the condition of threat. Under the simplified legalisation procedure, a party will be obliged to provide legalisation documents, i.e. a statement on the right to dispose of the property for construction purposes, geodetic as-built inventory for the construction and a technical expert’s report, within a period not shorter than 60 days from the date of delivery of the decision in this matter. Subsequently, after examination of the documentation provided, the authority shall issue a decision on legalisation, which will also serve as a basis for the use of the construction object, or a decision ordering a demolition, if pursuant to the expertise the object poses a threat to life or health and does not allow for safe use in accordance with the existing or intended use. An important difference between the basic and simplified legalisation procedure is also the exemption from the legalisation fee.
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