A real estate sales contract without taking into account the pre-emptive right of a national park is invalid

A real estate sales contract without taking into account the pre-emptive right of a national park is invalid

The Regional Court in Poznań, in its judgment of 4 November 2021, confirmed that the conclusion of a contract on the sale of real estate located within the area of a national park as a definitive contract, without the inclusion of a condition precedent in the form of the pre-emptive right in favour of the national park, is absolutely invalid.

The National Park filed a claim with the Court immediately after receiving information that in 2008 a contract of sales had been concluded for a real property located in the area of the national park without stipulating the pre-emptive right in favour of the Park. Moreover, the National Park was not notified about the contract either by the notary who drew it up or by any of the parties thereto.

The lack of stipulation of the statutory pre-emptive right in favour of the National Park (Article 10 section 5 of the Nature Conservation Act) was not disputed. However, due to the fact that the transaction took place more than 10 years ago, the defendants (parties to the sales contract concluded in the form of a notarial deed) claimed that the demand should not be accepted, and the contract should not be declared invalid by invoking the rules of social intercourse (Article 5 of the Civil Code).

The defendants’ argumentation was shared by the Regional Court, but the concept was criticised by the Court of Appeal. The appeal filed on behalf of our Client (as well as the action itself) turned out to be fully justified.

The Regional Court in Poznań indicated, inter alia, that:

1) The consequence of the invalidity of an unconditional contract of sale is, in particular, the absence of the possibility for the holder of the right of pre-emption to exercise that right.

2) The sanction of invalidity of an unconditional contract, where the law provides for a right of pre-emption for certain persons, is to be taken into account by the court ex officio and is of a definitive nature, which is to say, it excludes curing.

3) Seeking court’s declaration of the invalidity of a legal transaction is not subject to assessment under Article 5 of the Civil Code.

4) The invalidity of a legal transaction has nothing to do with the abuse of the law in its execution, it is a consequence of the inconsistency of the transaction with the law.

While finding the contract of sale invalid, the Court also pointed out that the fact that it was concluded over 10 years ago was of no significance.

The ruling will certainly be significant for all national parks, but also for other entities with a statutory right of first refusal to purchase real estate.

The Wielkopolski National Park was represented in the case by barrister Aneta Fornalik.

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