The new provisions introduce significant changes from the point of view of investors planning to execute investments in the future, but also those investors carrying out investments which are already under construction and those investments which have been completed a long time ago. The new provisions were introduced by the Act dated 13 February 2020 amending the Act on the Construction Law.
The main purpose of the amendment to the Act is to facilitate, simplify and speed up the investment and construction process, as well as to ensure greater stability of the law and decisions of administrative bodies.
Below we describe the most important changes.
In September, two new particular provisions of the Construction Law will enter into force which will introduce a time limit on the possibility to declare the building permit or the occupancy permit invalid. Such an amendment is expected to increase the certainty of decisions and minimize the risks for property owners and potential buyers.
Pursuant to Article 37b, it will not be possible to declare a building permit decision invalid if 5 years have elapsed since its delivery or publication.
In accordance with Article 59h, it will not be possible to declare the decision on the occupancy permit invalid if 5 years have elapsed since the date on which the occupancy permit decision became final.
In the course of verification of the legal status of the real property, the risk of invalidity of the decision on the building permit or on the occupancy permit could often be identified. In practice, such risk rarely materialized, however, regardless of the lapse of time, it could not be ruled out that the owner would suffer the consequences of the annulment of the decision. Although Article 156(2) of the Code of Administrative Procedure excluded the possibility of declaring a decision that had irreversible legal effects invalid, the assessment of whether there were irreversible legal effects was often discretionary, and a number of facts remained outside the scope of this limitation.
Up until now, the admissibility of the legalisation of an unauthorised construction depended on its compliance with the master plan or the decision on development conditions and land use, the so-called WZ decision.
The new regulations discard such a requirement with respect to the investments which were completed over 20 years ago. In such a case, the owner of an illegally constructed building object may use the so-called simplified legalisation procedure.
Under the so-called simplified legalisation procedure, it will be necessary to submit:
(i) a statement on disposal of the real property for construction purposes;
(ii) geodetic as-built inventory of a construction site; and
(iii) an expert opinion on the technical condition of the building.
In the course of the proceedings, the authority shall verify the completeness of the aforementioned documents and whether the expert opinion shows that the technical condition of the building object does not pose a threat to human life or health and allows for its safe use in accordance with its current or intended use. If the verification is successfully completed, the authority will issue a decision on legalization which is the basis for the use of the building object.
Owners of buildings which had been completed at least 20 years prior to the commencement of the proceedings (and which qualify as self-construction) will not be required to pay a legalisation fee. However, the exemption does not apply to buildings for which legalisation proceedings are already being conducted. The procedure of the so-called simplified legalisation procedure cannot be applied if a decision has been issued that requires the construction to be ceased prior to the lapse of the 20-year period.
Under new regulations, the concept of the construction project will change.
The construction project will consist of three main parts:
(i) the plot or land development project,
(ii) the architectural and construction design, and
(iii) the technical design.
The technical design will include, among other things, structural and installation solutions, but, unlike the plot or land development project and the architectural and construction design, it will not be submitted, verified and approved by the architectural and construction administrative body in the course of obtaining the building permit.
The technical design will have to be submitted by the investor to the building supervision authority at the time of submitting the application for the occupancy permit. Such a design must be consistent with the plot or land development project and the architectural and construction project approved by the architectural and construction administrative body.
Moreover, if the investor wishes to introduce changes to the technical design which are not compliant with the plot or land development project and the architectural and construction design, it will be necessary to make appropriate changes to the plot or land development project and the architectural and construction design first.
Distinguishing the three parts of the construction project is supposed to facilitate the granting of building permits. The intention behind the lack of need to submit the technical design was to deformalize the procedure and lead to faster preparation of the project documentation.
The amendment to the Act narrows down the definition of the area affected by the building object. The area affected by the building object is currently defined as the area delimited in the surroundings of the building object to which restrictions on zoning, including development, apply. From September 19, the area affected by the building object will be understood as the area delimited in the surroundings of the building object to which restrictions on development apply. Therefore, the reference to zoning restrictions has been removed from the definition and only the development restrictions have been retained.
The area affected by the building object constitutes the basis for determining the parties in the procedure for issuing the building permit, and thus determines the circle of entities which may attempt to challenge the permit. The legislator justified this change by the need to clarify the definition of the area affected by the building object due to the currently too broad interpretation of administrative courts of the concept of the area affected by the building object. Leaving only the term "development restrictions" is supposed to eliminate any interpretative uncertainties. Henceforth, the area affected by the building object will be understood as the area in relation to which the building object will preclude or limit the possibility of carrying out other construction works due to the requirements indicated in the regulations on land development, and not due to subjective inconveniences.
As part of the amended regulations, the implications of the acquisition of ownership or perpetual usufruct of real property covered by a building permit, where the seller is the current investor, have been addressed. As regards the assignment of a building permit, nowadays, the authority which issued the permit is obliged to assign the permit to another entity, provided that the investor agrees and if that other entity:
(i) accepts all the conditions contained in that decision, and
(ii) makes a declaration on the right to dispose of the property for construction purposes.
Therefore, the assignment of the building permit requires an administrative decision which is subject to the consent of the current investor.
The revised provisions stipulate that the consent of the investor to transfer the building permit will not be required if ownership of the real property or the right of perpetual usufruct is transferred from the current investor to the new investor applying for the assignment of the building permit.
In the amended provisions, the catalogue of the building objects which will not require a building permit or a notification prior to their construction has been extended.
For example, the requirement to apply for or obtain a building permit will be abolished in case of ATMs, ticket machines, deposit machines, vending machines, parcel storage machines or machines used to provide other services up to and including 3 meters.
As part of the upcoming legislative changes, the legislator is seeking to regulate the issue of building objects which are in use without the required consent of the building supervision authority.
Under the current legal regime, if a building is used in violation of applicable regulations, a penalty may be imposed on the investor only once. As a rule, upon payment of the penalty, the investor may continue to use the building object against the law without incurring further negative financial consequences. The penalty is imposed for illegal commencement of use, and not for illegal use itself.
However, the amendment to the Act introduces a new procedure for imposing penalties in case of commencement of use of a building object in violation of applicable regulations, called the "yellow card" procedure. In accordance with the new procedure, the penalty for illegal use of a building object may be imposed several times.
If the building supervision authority establishes that the building object (or part of it) is used in breach of the law, the investor will be properly instructed by an appropriate entry in the control protocol, and in case of absence of the investor or the owner, by a written instruction.
After 60 days from the instruction, the building supervision authority will check whether the investor has ceased to use the building object in a manner inconsistent with the regulations, and if it finds further violations, the authority will issue a decision imposing a penalty for illegal use of the building object.
After 30 days from the delivery of the decision to the investor, the authority shall again verify whether the investor has ceased to use the building object in an illegal manner. If it finds further violations, it is assumed that the decision imposing a penalty for illegal use of the building object will be issued repeatedly until the intended effect is achieved, i.e. the investor receives an occupancy permit or makes an effective notice of completion of the building object (nevertheless, it is worth noting that 30 days must elapse between the issuance of subsequent decisions).
The system of imposing a penalty each time after a failure to comply with the legal requirements is expected to result in a greater effectiveness of inspections of the building supervision authorities, and thus, in the legalisation of unauthorised use of building objects.
In the situation where it is found that the illegal use of a building object has taken place in the current state of law, which is in force until the entry into force of the new regulations, the possibility to impose multiple penalties will not apply.
The amendment to the Act also extends the possibility of a derogation from the technical and construction requirements. Nowadays, it is only permissible to obtain a derogation before obtaining a building permit, while from the date of entry into force of the regulations in question, it will also be possible to obtain a derogation in the event of a modification of the building permit.
The new regulations explicitly exclude the possibility of obtaining a derogation in case of the legalisation of an unauthorised construction, resolving the existing discrepancy in case law (some administrative courts have advocated the admissibility of granting a derogation from technical and construction requirements).