A chance to legalise construction projects built 20 years ago without a building permit

A chance to legalise construction projects built 20 years ago without a building permit

On 19 September 2020, the provisions of the Construction Law on simplified legalisation proceedings will come into force. These are not temporary provisions, but they have been added to the Act permanently.

Which projects without a building permit ?

If at least 20 years have elapsed since the completion of constructionthe construction supervision authority shall initiate a simplified legalisation procedure if the construction of a structure or part thereof is found to have been completed: 1) without the required decision on the building permit or 2) without the required notification or in despite an objection to this notification having been raised.

The simplified legalisation procedure is an ex officio procedure and not one that is instituted on request. The submission of a “request” to the competent authority to initiate the procedure may be considered as a basis for the initiation of the procedure ex officio. The provision allows to assume that the simplified legalisation procedure applies to all construction works subject to the obligation to obtain a construction permit or make a notification.

The procedure will take place only in respect of unlawful projects involving the construction of buildings and structures understood as the construction of a building in a specific place, reconstruction, extension, as well as superstructure of buildings (in accordance with the definition of “construction” contained in the Construction Law).

The procedure does not apply to reconstruction (“reconstruction” is: the performance of construction works leading to a change in the performance or technical characteristics of an existing building, with the exception of characteristic parameters such as cubic capacity, building area, height, length, width or number of storeys; in the case of roads, changes in characteristic parameters are permissible to the extent that they do not require a change in the limits of the road lane), as well as to other construction works performed without due legal authorisation.

The simplified legalisation procedure does not apply to buildings located on plots in family allotments.

The provisions apply to the so-called old unlawful construction projects, but the procedure also applies to construction works where 20 years after the completion of the construction of a building also passed after the date of entry into force of the amending act (procedure introduced permanently).

No legalisation fee !

It should be stressed that the legislator does not, as yet, provide for a statute of limitations on unauthorised construction projects. Importantly, no legalisation fee is provided for in the procedure.

On request procedure in respect of buildings built before 1 January 1995

The Act also provides for the simplified legalisation procedure to be conducted at the request of the owner or manager of that building, if the building was constructed before 1.1.1995 or in respect of which administrative proceedings had been initiated before that date. The “on request” procedure results from the fact that the provisions of the 1974 Construction Law, which also provide for free legalisation, apply as a rule to buildings constructed before 1 January 1995; therefore, the legislator has allowed a choice as to the legalisation procedure in these cases.

The new rules further provide that no simplified legalisation procedure can be initiated if the 20-year period has expired after the date of issuance of the order to suspend construction works.

What documents will the authority require ?

Under the simplified legalisation procedure, the construction supervision authority imposes the obligation to submit legalisation documents within not less than 60 days from the date of its delivery. The legalisation documents include: 

  1. declaration of the right to use the property for construction purposes,
  2. geodetic as-built inventory of the building,
  3. a technical expert‘s report drawn up by a person with appropriate building licenses, indicating whether the technical condition of the building does not endanger human life or health and allows for safe use of the building in accordance with its current or intended purpose.

What does the authority examine in the simplified legalisation procedure ?

In the course of the simplified legalisation procedure, the construction supervision authority verifies the completeness of the legalisation documents and whether the technical opinion shows that the technical condition of the building does not pose a threat to human life or health and allows for safe use of the building in accordance with its current or intended use. In the course of this procedure, no examination of whether the building violates the local zoning plan and whether it is in accordance with the decision on building conditions. The authority also does not examine the conformity of the building with technical and building regulations resulting from, among others, the Regulation of the Minister of Infrastructure of 12 April 2002 on the technical conditions to be met by buildings and their location (this is where the abolitionist nature of the procedure becomes apparent). 

Legalisation decision

At the end of the proceedings, the construction supervision authority acting according to the simplified legalisation procedure, issues a decision on legalisation if the legalisation documents are complete and if the technical opinion shows that the technical condition of the building does not endanger human life or health and allows for safe use of the work in accordance with its current or intended purpose.

The negative outcome of the proceedings is a demolition order decision.

However, it should be stressed that the fulfilment of the formal conditions for legalisation requires that the authority is obliged to issue a legalisation decision (bound decision).

The legalisation decision is the basis for the use of the building. This means that there is no obligation to complete a separate procedure related to the approval of the legalised building for use.

Transitional” situations

It follows from the transitional provisions to the Act amending the Construction Law that initiated and unfinished proceedings concerning illegally erected buildings will be conducted on the basis of provisions in their current wording. Legalisation on the basis of simplified rules is to apply only to unauthorised projects, in respect of which no legalisation proceedings were being conducted on the date of entry into force of the Act.

Once again, it should be stressed that the simplified legalisation procedure cannot be initiated in respect of buildings for which a demolition order decision was issued before the date of entry into force of this Act.

SUMMARY

As at 19.09.2020, unlawful building project over 20 years old with unregulated legal statusSIMPLIFIED LEGALISATION
On 19.09.2020, proceedings concerning the unlawful building are pendingHAS TO BE CONDUCTED ACCORDING TO THE EXISTING REGULATIONS, SO SIMPLIFIED LEGALISATION IS IMPOSSIBLE
As at 19.09.2020, there is a demolition decisionTHERE IS NO POSSIBILITY OF INSTITUTING ANY OTHER PROCEEDINGS REGARDING A BUILDING ERECTED WITHOUT PROPER AUTHORISATION. THE DECISION TO DEMOLISH MUST BE IMPLEMENTED
Buildings predating 1.01.1995THE OWNER/MANAGER MAY CHOOSE EITHER THE 1974 CONSTRUCTION LAW PROCEDURE OR THE SIMPLIFIED ONE

Legal status as at: 2 June 2020.

If you are interested in this topic, please contact attorney Aneta Fornalik, phone: +48 502 840 385.

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