New rules for legalisation of unlawful construction
The amendment to the Construction Law has made life easier for some owners of unlawful structures. Those whose structures were built over 20 years ago can rest easy. So long as their structure is in proper technical condition, they are not threatened with a high legalisation fee or a demolition order. The regulations governing other unpermitted structures have also been simplified and consolidated.
The 23 January 2020 amendment to the Polish Construction Law, which entered into force on 19 September 2020, overhauled the procedure for handling cases where construction works have been commenced and carried out in violation of the law. The changes will facilitate the legalisation procedure, and in the case of older structures built without complying with the required formalities it will be much easier to bring them into compliance with the law.
Standard legalisation procedure
The standard legalisation procedure has been consolidated. The procedures for legalisation of structures built without a building permit and for those built without notification, which previously were separate, have now been merged into one procedure. If construction was begun without a required permit or notification, the construction supervision authority, as before, will issue an order to halt construction work. Such an order will be issued regardless of whether construction has been completed or is still underway.
A totally new feature is to allow the investor, owner or manager of a structure to decide at such an early stage whether it wishes to continue the legalisation procedure or consent to issuance of an order to demolish a structure that was built unlawfully. When issuing an order to halt construction work, the supervisory authority will notify the investor of the possibility of filing an application for legalisation of the unlawful construction, while indicating the duty to pay a legalisation fee and explaining how the fee is calculated. At this stage the supervisory authority will not take any other action.
An investor faced with this choice will have 30 days to decide whether to commit to the time and cost of a legalisation procedure, or to waive this possibility and take down the unlawful structure.
If the investor decides to bring the unlawful structure into legal compliance, and files the appropriate application within the designated period, the construction supervision authority will require the investor to file legalisation documents. The composition of this set of documents will depend on whether the construction was carried out without a required permit or without a required notification. In both cases the applicant will have to submit a certification that the construction conforms to planning documents and a declaration that the applicant has the right to use the property for construction purposes. In the case of unlawful construction without a required building permit, it will also be necessary to draw up a plan for development of the site, and an architectural and technical design (according to the new system). In constructions carried out without a required notification, it will suffice to submit a plan for development of the site.
Importantly from the perspective of the grounds for legalisation of an unlawful structure, in the next phase of the legalisation procedure the construction supervision inspector will have only limited power to verify the documentation submitted by the applicant. The inspector will only check the documents for completeness and compliance with the Construction Law of the plan for development of the site, including technical construction regulations. The act provides that verification must be made under the regulations that were in force at the time of construction, which is vital in the case of unlawful structures executed in the past, which may not have to meet contemporary standards. It should be pointed out that unlike the prior rules, the supervisory authorities will not verify whether the plan for development of the site complies with planning and zoning regulations. Apparently, the drafters’ aim was that the structure’s compliance with the local zoning plan or planning decision is to be verified directly by the body issuing the certification in this respect, which in practice may present various problems.
If everything is in order in the legalisation documentation, an order setting the amount of the legalisation fee should be issued. Payment of the fee is an essential condition for completion of the legalisation procedure through issuance of a legalisation decision confirming the construction design (or if the construction is not yet complete, permitting resumption of construction). The legalisation decision will also impose an obligation to obtain an occupancy permit for the legalised development. This will also apply to unlawful structures which in normal conditions would not have required an occupancy permit.
The new regulations narrow the list of instances in which a demolition order can be issued, to cases where the investor, owner or manager of the building:
- Has failed to file an application for legalisation or has withdrawn such an application
- Has failed to submit legalisation documents
- Has failed to cure defects in the legalisation documentation
- Has not paid the legalisation fee, or
- Has continued construction despite issuance of an order to halt construction.
Simplified legalisation procedure
The new regulations differentiate between structures erected unlawfully depending on their age. Structures completed at least 20 years in the past can be legalised according to a simplified procedure. This makes life easier for both the authorities, who will have to take many fewer actions in such legalisations, and the owners of the unlawful structures, who will not have to prepare as much documentation and will not incur heavy costs.
Like other legalisation procedures, this type of procedure will be conducted either at the authority’s own initiative or upon application of the owner or manager of the unlawful structure. However, it will be possible to commence the simplified procedure only if an ordinary legalisation procedure was not commenced within 20 years after completion of construction.
In the simplified legalisation procedure, the construction supervision authority will not issue an order to halt construction work, which under the normal procedure is issued even when construction has already been completed. However, the authority will be able to intervene immediately if an unlawful structure whose technical condition is unsatisfactory poses a danger to life or health. In such case, within the procedure the inspector can issue an order to secure the structure and eliminate the danger.
In a legalisation proceeding, the inspection authority conducting the proceeding will first require the owner or manager of the structure to present legalisation documentation. But here the requirements are less stringent than before, as the documentation is limited to a declaration on the right to use the real estate, a post-construction survey, and a technical expert report demonstrating that the technical condition of the structure does not pose a threat to life or health and allows the structure to be safely used for its current or intended purpose.
A simplified legalisation proceeding will end in issuance of a legalisation decision or a demolition order. The determination will depend on submission of complete documentation and the conclusions of the technical expert opinion. The new regulations greatly limit the inspectors’ competence to verify the documentation: the inspectors will only check whether the documentation is complete and the expert report finds that the technical condition of the structure does not pose a threat and the structure itself can be safely used. In my view, this provision means that the supervisory authority will not be entitled to dispute the expert reports submitted by owners, so long as they are prepared by persons holding the appropriate qualifications. In this respect, the supervisory authorities will not make any findings of their own. Moreover, the authority will not be entitled to take any actions for example involving assessment of the structure’s compliance with technical construction provisions or the local zoning plan. Nor will the authority be able to demand an environmental decision, even if it would be required under the standard legalisation procedure.
Issuance of a legalisation decision ends the simplified legalisation proceeding so that, unlike in the standard legalisation procedure, the structure may be put into use without having to obtain an occupancy permit. Then the basis for use of the legalised structure will be the legalisation decision itself.
Crucially for owners of illegally built structures, the simplified legalisation procedure does not provide for legalisation fees, the amounts of which can be so high that they render the legalisation unfeasible (especially in the case of structures more than 20 years old). Under the new procedure, the main costs of legalisation will be limited, and the largest cost will be to prepare the technical expert report.
In practice, simplified legalisation proceedings may give rise to certain complications. The law does not answer the question of how to proceed if the technical expert report finds that the structure requires certain work to be conducted to bring it to a condition allowing safe use. Sometimes it will also be hard to prove when the unlawful construction of a building was completed. Nor is it clear how to treat possible later construction work on such a building, also made without permission but less than 20 years before commencement of the proceeding. Will inspectors regard subsequent work, such as renovation or expansion of an older structure, as a bar to using the simplified legalisation procedure?
Assessment of new regulations
Introduction of a liberal new legalisation procedure, which in many instances is tantamount to amnesty, should be assessed positively. The length of time that must pass from the end of construction is long enough that potential legalisation will not injure the interests of other parties (unlike, for example, the inability of stakeholders to seek invalidation of a building permit). Structures in place for 20 years or more have generally been incorporated into the space, and in most instances their use should not have a negative impact on the surroundings.
It appears that many owners will be interested in taking advantage of the new regulations—both in the case of owners of unlawfully built structures and those who due to the passage of time no longer hold the documentation on construction and occupancy of structures. In transactions on the real estate market, buyers or financers sometimes require presentation of the full construction documentation, but the documentation has not been retained. Issuance of a legalisation decision using the simplified procedure will provide confirmation that the structure is being used legally.
Radosław Wasiak, adwokat, M&A and Corporate practice, Wardyński & Partners