Who is simply a organization to the construction procedure erstwhile property rights cannot be established

dailyblitz.de 1 month ago

As a consequence of the fresh improvement of spatial planning, the legislator has improved the rules for determining the parties to the proceedings and for notifying them in the procedure for the decision on the terms of the construction and the location of the public mark investment (ULICP). The differences in explanation and rules of conduct of administrative authorities in the case of insufficient data from the parties were eliminated by the notice, in peculiar in the case of immovable property with unregulated legal status.

Unregulated legal status

An unregulated property is now understood as a property for which, due to the absence of a perpetual book, a set of papers or another documents, it is impossible to identify persons who have rights in kind. This regulation besides applies where the owner or the perpetual user of the property is dead and has not been carried out or the succession proceedings have not been completed.

Referring to the case law of the administrative courts, the Provincial Administrative Court in Białystok can be quoted, which indicated that ‘if it is possible on the basis of existing papers to establish unequivocally all co-owners of immovable property without a perpetual book or a set of documents, there is no reason to claim that the property has an unregulated legal position within the meaning of Article 113(6) u.g.n., even if in the land and building records, alternatively of 1 of the co-owners, another individual has been misdisclosed, who is not in fact a formal co-owner of the land and buildings’ (see IP/10/73). Judgment of 13 December 2018, No. II SA/Bk 546/18).

Page of proceedings

One of the duties of the investigating authority is to notify the investor and the parties to the beginning proceedings. It is problematic that the provisions do not specify the organization to the procedure for establishing the building conditions. In particular, they do not indicate that the organization to the decision on the conditions of construction is to be the entity whose property borders the area covered by the application for the conditions of construction.

In practice, it was accepted that the organization to the procedure for the decision on the conditions for the construction and improvement of the site was the owner or perpetual user of the property concerned. The parties to the proceedings shall besides be deemed to be owners or perpetual users of parcels straight adjacent to the property concerned, provided that, in the case of specified properties, their owners, perpetual users may be organization to it after the conditions of the circumstantial case and in the circumstantial circumstances of that case have been demonstrated. Article 28 kp.a.. According to that provision, the organization is any individual whose legal interest or work is afraid by the proceeding or who requests the action of the authority on grounds of his legal interest or obligation.

The most fresh case law of the administrative courts underlines that the organization to the procedure for establishing the building conditions is the applicant (investor) and the entities having a legal title to the property for which the building conditions are to be established. The owners of land straight adjacent to the site of the investment, as well as further located properties, may besides be considered to be parties to the proceedings, given the location of these land in the area of investment impact.

Whether a individual is entitled to the position of a organization to an administrative proceeding concerning the conditions for the construction and improvement of the site for the investment provided for on the neighbouring game does not automatically find the proximity of the game to the investor’s plot. In any event, an analysis shall be made of whether the individual has a legal interest to participate in specified proceedings. The provision shall so apply. Article 28 kp.a.. The existence of a legal interest in specified a situation is determined by the degree of the impact of the investment on neighbouring properties and the degree of inconvenience to these properties. In specified cases, the question of the impact of the planned investment on neighbouring properties is applicable in determining the ellipse of parties. NSA judgement of 26 April 2023, ref. Act II OSK 1453/20).

Important! Only an entity that demonstrates its legal interest in settling a peculiar case may be organization to the administrative procedure for establishing the building conditions. The legal interest is of a substantive nature, must be personal, own, individual and specific, objectively identifiable and current alternatively than possible. It should indeed be on the date of application of the administrative standards concerned.

How to establish the ellipse of parties to proceedings

In the current legal state, property rights and data relating to persons to whom those rights are entitled shall be established on the basis of land and building records, a set of papers or another authoritative documents.

If the investigating authority on the basis of the evidence referred to above, including, in particular, a set of papers or another authoritative documents, is incapable to find who has rights in kind with respect to the property described in the question, it should verify whether the property in question constitutes an immovable property of an unregulated legal status.

In the case of immovable property with an unregulated legal position or a deficiency of data to establish the address of the owner or the user of the perpetual immovable property on the basis of any circumstances, where they are known to the authority of their own motion or have been designated by the party, including land and building records, the notification shall be made in the manner referred to in Article 49 kp.a..

Article 49 k.p.a.§ 1. Where a peculiar provision so provides, announcement of the decisions and another activities of the public administration may take the form of a public notice, in another form of a public announcement customary in a given locality or by making a letter in the Public Information Bulletin available on the subject-matter of the competent public administration authority.Paragraph 2. The day on which the public notice, another public announcement or publication of a letter in the Public Information Bulletin was made shall be indicated in the contents of that notice, in the announcement or in the Public Information Bulletin. The notification shall be deemed to have been made 14 days after the date on which the public notice, another public announcement or publication of the letter in the Public Information Bulletin.

Important! The investigating authority shall not be obliged in specified cases to apply to the court to appoint a typical for a individual absent or incapable to act unless the typical has already been appointed. Provision Article 34(1)(a) It does not apply here.

What to Remember

The fundamental change in the procedure for obtaining the decision on the building conditions and the ULICP from 24 September 2023 relates to the procedure for the recognition of immovable property with an unregulated legal status:

1) the property rights in kind and the data relating to the persons to whom those rights are entitled shall be determined on the basis of the land books, land and building records, a set of papers or another authoritative documents,

2. the addresses of persons entitled to property rights shall be established on the basis of all circumstances, if they are known to the authority of their own motion or have been designated by the party, including land and building records; service to that address shall be effective,

3) in the case of immovable property with an unregulated legal position or a failure to get data to identify the address of the owner or user of the immovable property as specified above, the notification shall be made in the manner referred to in Article 49 kp.a. Provision Article 34(1)(a) does not apply.

In case of doubt, it is worth consulting a lawyer to avoid unnecessary disputes.

The information on the website is simply a description of the legal position at the date of publication and is not a legal advice on an individual case. The legal position of publication may change. The law firm is not liable for utilizing an alert to solve legal problems.

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