Can an old house turn out to be a legal trap? We check

2022-07-03 06:00

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2022-07-03 06:00

Can an old house turn out to be a legal trap?  We check
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In the current economic conditions, older houses are receiving increasing attention. We explain whether their location, for example close to roads or other buildings, and the possible lack of permits, can prove to be a major problem.

Old buildings from the times of the Polish People’s Republic, and even the Second Polish Republic, are sometimes very close to the road or adjacent buildings. Experts from MarketPierwotny.pl decided to clarify whether this is a problem in the context of current regulations. Other legal complications are also worth mentioning.

The situation regarding the deterioration of Poland’s creditworthiness may be less serious for owners of cheaper real estate. Demand for cheap flats and houses is likely to decline to a lesser extent. Not all potential buyers of real estate can translate their housing plans to, for example, the second half of the current decade. Financial markets, on the other hand, expect key NBP interest rates to be close to or slightly lower in two years’ time. This is confirmed by quotes from FRA contracts. In such circumstances, the interest in older homes (including renovation) may increase permanently.

Only selected regulations apply to older homes

In the context of current construction law, its possible application to older buildings is rarely discussed. For important information on this topic, see Regulation of the Minister of Infrastructure of 12 April 2002. about the technical conditions that buildings and their location must meet. The aforementioned legal act in paragraph 330 informs that its provisions do not apply to buildings built on the basis of a permit issued before December 16, 2002.

An important exception concerns the regulations regarding fire safety, the dimensions of the stairs, as well as emergency lighting, if the existing building can be classified as a life-threatening situation on the basis of separate regulations. However, the need to fully implement the new regulations applies to older buildings that are subject to refurbishment or change of use.

With regard to the subject of older buildings and current regulations, it is worth mentioning the judgment of the Supreme Administrative Court of 21 November 2012 (see file number II OSK 1316/11). In a case under investigation by the Supreme Administrative Court, construction supervisors sought to force the owner of a home built in 1942-1943 to remove a window opening in the wall directly at the plot boundary.

The officials’ argument was that Ordinance of the President of the Republic of Poland of February 16, 1928 on construction law and housing construction it is prohibited to place window and door openings in the wall at the plot boundary. However, the Supreme Administrative Court ruled that the attempt to force the owner to install the window was unjustified in light of paragraph 330 of the Ordinance of the Minister of Infrastructure of 12 April 2002. It is worth recalling that construction supervision must demonstrate the threat to human life posed by the characteristics of an older and used building, the structure of which he intends to intervene.

Any arbitrariness can be more easily legalized

Good news for buyers of older buildings was certainly the introduction in September 2020 of regulations allowing the application of a simplified legalization procedure for arbitrarily built buildings. Simplified legalization procedures with regard to objects that have been illegally built (in whole or in part) at least 20 years before, should be started ex officio.

However, the exception applies to lawlessness that arose before January 1, 1995. In their case, the owner can choose the legalization option themselves. It concerns a simplified legalization process or solutions from the previous construction law. I am talking about Articles 40 and 42 of the Act of 24 October 1974 – Construction Law (Official Gazette 1974 no. 38 item 229). A simplified and free legalization of lawlessness is a good solution according to the current regulations. It can also apply to farm buildings, shelters, and garages built next to older homes. However, it should be remembered that the lack of expert opinion confirming the safe use of the facility will force the Construction Supervision Authority to make a demolition decision.

It’s not just construction law issues that will be important

People interested in older homes should not only check aspects related to the possible legality of construction, building safety and possible fire code violations. The issues of property right itself also seem to be important. An unpleasant surprise can be, for example, the lack of a land registry and mortgage register, which is temporarily replaced by a set of documents.

The problem associated with the lack of a land and mortgage register usually concerns land in western Poland acquired on the basis of post-war donation laws, as well as plots of land obtained thanks to the Act of 26 October 1971 regulating the ownership of farms. In the case of an older house, the problem may also be an active life that was not entered in the Land Registry and Mortgage Register before April 22, 1991 and must be respected after the purchase. Fortunately, there are fewer and fewer difficult contracts – just like real estate without land registry and mortgage register.

Andrzej Prajsnar

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