Tax & Legal Highlights for Real Estate – September 2021
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1. Need to regulate the proceedings for consenting to perpetual division of the property
Under the resolution of 13 March 2015, file III CZP 116/14, the Supreme Court took the controversial position that a perpetual usufructuary might not carry out a perpetual division consisting in establishing a new land and mortgage register book for individual registered plots of land or merging the properties into a single land and mortgage register book, if it has not previously obtained the consent of the owner of the land granted into the perpetual usufruct, i.e. the State Treasury or a local government entity. As of the date hereof, the Supreme Court’s decision has not seen any reaction from the Polish legislator that would adopt appropriate regulations regulating this matter, which creates a number of problems in the practice of trade. It has happened many times, that despite requests filed by perpetual usufructuaries to consent to land and mortgage register division (podział wieczystoksięgowy), authorised entities left the application unconsidered or refused to consent to land and mortgage register division (podział wieczystoksięgowy) without justification or a specific reason. On the other hand, entities interested in resolving this issue, due to the lack of normative regulation, did not (do not) have any legal instruments to force the State Treasury or local government entities to take any actions.
Consequently, the developers took a joint initiative and decided to request the Minister of Justice to prepare an appropriate draft, which would introduce a clear procedure of applying for such consents. In our assessment, this is a very appropriate action, as this issue needs to be quickly regulated in order to remove the existing lack of the proper regulation in this matter. It remains to be believed that the Minister of Justice will act quickly and will soon prepare an appropriate amendment, since currently, in the public domain, there is no draft of the act regulating the procedure of issuing consents for division by the perpetual usufructuary.
2. The Council of Ministers adopted a draft act amending the Act – Construction Law and the act on spatial planning and development, submitted by the Minister of Development and Technology.
Construction of single-family houses up to 70 m2 will be possible without obtaining a building permit, appointing a construction manager and keeping a construction log. Such houses will be able to be built only in the so-called notification procedure with a construction design. The new solution is part of the Polish Order (Polski Ład) programme.
Key solutions:
- It will be possible to construct single-family residential buildings, with a footprint of up to 70 m2, without obtaining a building permit, appointing a construction manager and keeping a construction log.
- Such buildings are to be free-standing and have no more than two storeys, i.e. they should be small and of simple construction.
- An acceptable density of houses of up to 70 m2 has been specified. The number of designed buildings may not be more than one for every 500 m2 of plot area. At the same time, the size of the plot may be less than 500 m2.
- The construction of a house will require a notification to the construction supervision authorities and the designer supervising the compliance of the construction with the design about the intended date of commencement of the construction works.
- When constructing a house, it will be necessary to comply with technical and construction requirements, i.a. maintain appropriate distances from the plot boundaries.
- In the absence of a local zoning plan, a decision on outline planning and spatial development for houses of up to 70 m2 will be issued within 21 days.
The new regulations will enter into force 2 months after their publication in the Journal of Laws.
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