Bartosz Trocha

Landmark property: a prestigious address or a white elephant?

In a closely watched case pending before a court in Łódź, the owner of an historically significant house is charged with illegal demolition of the building just before it was covered by formal landmark protection.

If the case leads to a conviction, it may be the first example in Poland of a harsh sentence imposed for destruction of a landmark, but there are numerous such incidents around the country.

The reports from all regions of Poland are disturbing. The system in place in Poland for protection of landmark properties, designed to maintain their architectural value for future generations, is becoming an arena for more and more aggressive disputes between the current owners of the properties and the public officials charged with protecting them. Some say there is a war going on between landmarks conservators and the owners of historic buildings. It is guerrilla warfare, fought by out-manoeuvring the opponent with a fait accomplit.

Legal foundations

The issue of landmark protection is currently regulated primarily by the Act on Protection and Care for Landmarks of 23 July 2003. Under the act, a landmark is defined to mean a property (or part of a property, or a group of properties) which is the work of man or connected with human activity, which is testimony to a past era or event and whose preservation is in the public interest because of its historical, artistic or scientific value. The act currently provides for four possible forms of protection for landmarks: entry in the register, recognition as an historical monument, establishment of a cultural centre, and establishment of protection in the local zoning plan (or, from two years ago, in any of several other types of administrative decisions listed in the act).

It should be stressed that landmark status is not determined by whether or not a property has come under the protection of one of the schemes mentioned above, because under the act the quality of being a landmark arises from the mere fact that the property meets the statutory definition of a landmark. Thus statements (common in the press) that this or that building “became a landmark” because it was entered in a register are technically erroneous. It is also incorrect to refer to landmarks in Poland as “Grade 0” or the like, because the grading of landmarks was eliminated many years ago.

The most frequently encountered form of protection is entry in the landmarks register. This may be done by the province landmarks conservator, either upon application by the owner or at the conservator’s own initiative. The latter option is the main source of the conflicts mentioned above, because there is an unavoidable clash between the private interest of the owner and the public interest in preserving landmarks regardless of the expenditures required to do so. It should thus come as no surprise that owners of such properties will go to great lengths, and test the boundaries of the law, to avoid the unwanted burdens associated with preservation of a landmark.

The ruthless conservator…

The arguments raised by owners involved in conflicts with the landmarks conservator differ in their level of belligerence. The most extreme of them dispute the very notion of landmarks protection as a violation of property rights. They regard intervention by the conservator in renovation or redevelopment as an infringement on the freedom of the owner, which they regard as extending up to and including the right to physically demolish a landmark building. They probably represent a small percentage of owners. But complaints are often lodged against conservators by owners who appreciate the value of their property but are bothered by the numerous difficulties of a smaller scale that they must deal with.

The most frequent complaint about the landmarks conservators is that they raise numerous and costly objections to proposed renovations of landmark buildings. Perhaps surprisingly, this concern particularly affects owners perceived as wealthy, such as the heirs to impressive buildings in city centres. For example, the owners of a distinguished building in Warsaw complained that conservancy officials “milked” them, assuming that they could demand the finest work from the owners of such a luxurious property.

This is not a problem just in Poland, or other countries that underwent a similar post-communist transformation, but also in Western Europe, where protection of the cultural heritage is a top priority. Just a few years ago the media in France reported that the owners of centuries-old castles and palaces were selling them off because they could not bear the financial burden imposed by the landmarks protection regulations.

Financial aspects aside, another common complaint about conservators is that their requirements are difficult to meet for technical reasons. I used to be irritated myself by the sight of restored buildings where it was decided not to bother recreating the original, intricate decoration of the balconies. I assumed that the investors just did not care. But recently I realised from a specific project what a back-breaking task it is in the 21st century to recreate a sandstone balcony to the standard expected by the conservator. It turned out after a thorough search by the administrator of the property that no one in Poland today produces sandstone slabs large enough for this purpose. The nearest possible supplier was in Italy and was unreliable, and no supplier in the world could guarantee that the stone would come from a deposit as deep as the original—which was essential if the construction of the balcony were to be resistant to erosion. As a compromise, the conservator finally agreed that cement could be used instead of sandstone.

The third major complaint, common across the whole public administration, is the length of the proceedings which will ultimately determine the fate of a landmark. Conservators argue in their own defence that they do not have the manpower in their offices to cope with the numerous tasks they are expected to perform, particularly in large cities with an extensive stock of old buildings and a significant number of development projects.

…or the barbaric owner?

The list of complaints that conservators have about difficult owners is not a short one either. Specialists agree that owners no longer regard landmark buildings as a source of pride but only as a deadweight, and if they could get rid of it the value of the land would increase (even several times over). Effectively “freeing” plots from troublesome landmarks is definitely the hottest front in this conflict. Conservators sometimes literally race with the owners to enter a property in the register or at least start the procedure before the landmark faces the firing squad.

This race can drive the owners to the heights of creativity. Some of the most notorious examples follow a certain script. Demolition typically starts on a Friday evening, after the state offices close. Often the public services available at that time, including the police, are not familiar enough with the applicable laws (a situation that was eagerly exploited by the owner of the house in Łódź mentioned in the introduction). By the time the conservator’s staff can react on Monday morning, there is nothing left of the landmark but a pile of rubble. A cruder method is arson by “persons unknown”. Although the act provides severe penalties for destroying a landmark, up to and including prison, in practice if the landmark was not yet listed in the register the penalties are limited to a token fine of a few hundred zloty, which the conservators hardly believe is effective at deterring perpetrators, particularly compared to the profit they expect to make from selling the empty land.

As a result of these and similar practices, the institution of entry in the landmarks register has become a kind of life raft. Province conservators hastily enter threatened landmarks in the register which actually deserve only a modest level of protection by the local authorities, primarily through the local zoning plan. This waters down the prestige of the landmarks register itself, which should focus on properties of truly distinct, nationwide importance.

The owners of landmarks are also successful at exploiting procedural loopholes. There is the well-known example of a century-old factory in Łódź—one of the first structures in Polish lands made of reinforced concrete—whose owner wanted to demolish the building. He effectively defeated attempts to serve him with the decision entering the building in the landmarks register for so long that the conservator finally had resort to substitute service by publishing a notice in the newspaper. The case was notorious also for the fact that the same owner had already reduced another landmark to rubble, despite undertaking to renovate the building when he bought it. The dispute was finally resolved at the Ministry of Culture, which ordered the owner to maintain fragments of the factory.

Finally, it should be mentioned that the conservators act under the pressure of conflicting expectations: on one hand the local authorities want to create a welcoming environment for investors, but on the other hand the growing ranks of non-governmental organisations seeking to protect landmarks or improve public spaces blame the conservators for neglect and defeats.

Chance for a ceasefire?

The desire to preserve historic structures should not be worshipped as dogma. The replacement of older buildings with newer ones is a natural process, and preservation of distinguished structures from the past should not be conducted in complete disregard of economic realities or the desires of the current owners. Nonetheless, this evolution in the urban fabric must occur with respect for the law, and it is reasonable to expect the quality of the new architecture to be just as high as what it replaces. This can be achieved only through effective cooperation between owners of real estate and public authorities, and both sides should be guided by a concern for our common heritage.

Bartosz Trocha, Real Estate & Construction Practice, Wardyński & Partners