Special residential law draft | Legal Alert
The Ministry of Investment and Development presented a draft version of the special law on facilitations in preparation and execution of residential and auxiliary investments. It constitutes a kind of revolution from the point of view of the current construction process – introduces unknown legal instruments connected with the construction process which significantly quicken execution of residential investments and remove the formal obstacles, with respect to obtaining access to lands and the time required to obtain administrative decisions. The law is beneficial for the developers – undoubtedly, because of the facilitations included in that law, they will be able to build more flats in the areas where it was not possible before. The draft version of the law is addressed to all investors but the investments executed in accordance with the law have to meet specific requirements. The investors will still be able to build on the basis of the current regulations – the law introduces an additional mode of executing construction investments but does not exclude construction based on the applicable regulations. Therefore, the law constitutes a kind of arrangement between the local governments and developers: developers can build more and in the locations which were not available before, but they need to meet the specified requirements.
NEW AREAS FOR RESIDENTIAL BUILDINGS
Execution of residential investments contrary to the existing local spatial development plan (MPZP):
- the law allows locating residential investments contrary to the provisions of the applicable local spatial development plan – allows construction in the areas where it is not possible in accordance with that plan,
- at the same time, it does not require conducting a long and complex procedure of amending the local spatial development plan,
- the investor may apply to the commune council for consent for performance of the investment,
- the commune has 60 days to adopt a resolution granting or refusing such consent,
- in reference to the investments executed in the areas not covered with a local spatial development plan, the consent will be granted by mayor, head of the commune or president of the city.
Execution of residential investments on agricultural lands:
- it will be possible to execute residential investments on agricultural lands located within administrative borders of cities – limitations of the act on protection of agricultural and forest lands will be excluded on the basis of the new law,
- the limitations of the act on formation of the agricultural system will not be applicable – agricultural lands in cities can be purchased in order to execute a residential investment conducted under the planned law,
- however, if a construction permit is not obtained in the specified period or a specified part of the investment is not completed and put to use – the National Agricultural Support Centre (KOWR) will be able to purchase such property.
Execution of a residential investment will also be possible in railway areas after arranging it with the entity managing a specific railway area.
NEW LEGAL INSTRUMENTS IN THE CONSTRUCTION PROCESS CONDUCTED ON THE BASIS OF THE LAW:
- a residential investment will be executed on the basis of the decision concerning determination of the residential investments locations,
- such decision will be issued by the head of the province (wojewoda), upon request of the investor, within 45 days, subject to a fine for delay in issuing the decision,
- an auxiliary investment included in the same investment plan will be possible on the basis of the decision concerning determination of the residential investments locations,
- the investor will be forced to obtain opinions of the appropriate bodies,
- if a residential investment is planned in:
- an applicable local spatial development plan,
- decision concerning determination of the public investments locations,
- decision on construction conditions,
the investor may apply directly for the construction permit under the new law – without the need to obtain the decision concerning determination of the residential investment locations,
- under the construction permit issued under the new law, it will be possible, against the will of the owner/perpetual lessee of a real property, to obtain a permission for establishing and placing routes, wires, devices and facilities necessary for using the residential investment; if it prevents using the real property, the owner/perpetual lessee may demand the investor to acquire the ownership/perpetual lease of the real property from its owner/perpetual lessee,
- it will be possible to obtain a permission to remove trees or bushes within the framework of the construction permit,
- more flexibility within the scope of withdrawing from the construction design,
- faster and more efficient obtaining water-related permits,
- easier obtaining of the consent to place the facilities network in the road lanes, under the risk of a fine for the road manager,
- immediate enforcement of decisions issued under the new law.
- Residential investments executed under the new law have to meet specific urbanistic standards:
- specified construction size,
- maximum building height,
- access to public road, water, sewage, electric power networks,
- specific distance to a public transport stop, store, recreation and sports areas,
- appropriate number of places in schools, kindergartens available in a specified distance from the investment.
The investor will be able to provide the commune with an appropriate amount of money if the investment does not meet the requirements concerning access to schools or kindergartens.
THE RESIDENTIAL LAW MEANS THE FOLLOWING FOR THE DEVELOPERS:
- new, alternative mode of executing residential investments,
- construction procedure based on new institutions not used previously – new type of administrative decisions,
- significantly quicker and less formal construction procedure, change of the land designation and preparation of the investment shortened from 5 years even to half of a year,
- tools allowing construction contrary to the local spatial development plans,
- possibility to build on agricultural lands in cities,
- possibility to acquire agricultural real properties in cities without the limitation of the law on formation of the agricultural system,
- not all investments can be executed on the basis of the new law – necessity to meet a number of specified urbanistic requirements.
Maciej Duch – Partner, advocate
Magdalena Klimczyk – Associate, attorney at law