Disposal of real estate as a prerequisite for asserting a claim under Article 36(3) of the Act of 27 March 2003 on planning and spatial development for compensation for the reduction in the value of real estate

Article 36(3) of the Act of 27 March 2003 on planning and spatial development entitles the aggrieved party to claim compensation for the reduction in the value of the property if it is disposed of after the plan has been adopted or amended.

Are gratuitous acts excluded from the premise of the disposal of real estate on the ground of a claim for compensation for a reduction in the value of real estate?

There has been controversy in legal science and jurisprudence as to how the disposal of real estate referred to in the above provision should be understood. The first view is based on the assumption that the disposal of real estate takes place as a result of a pecuniary transaction, i.e. one in which both parties receive a benefit (e.g. in a sale agreement the seller receives a price and the buyer receives a property right). The other position allows for considering as disposal of real property within the meaning of the above provision also gratuitous actions, i.e. actions in which a benefit may arise only on one side of the legal transaction (e.g. in a donation agreement only the donee obtains a benefit, as the donor transfers the right to the property to the donee without demanding payment of the price, for free).
The prevailing position in the case law is to exclude all gratuitous acts from the scope of the prerequisite of the claim under Article 36(3) of the Act of 27 March 2003 on spatial planning and development for compensation for the reduction in the value of real estate.
As a result, if the owner or perpetual usufructuary transfers his right to the real property by effecting a gratuitous legal transaction, he will lose the entitlement under Article 36(1) of the Act of 27 March 2003 on spatial planning and development, i.e. the claim for compensation for the actual damage suffered or purchase of the real property, and in its place will not acquire the entitlement for compensation for the reduction in the value of the real property. A gratuitous legal act of disposal of real estate may therefore lead to the loss of all claims that the aggrieved party obtained as a result of the enactment or amendment of the local plan.

Which agreements not to enter into in order not to lose planning damage claims?

A gratuitous legal transaction may be, in particular: an agreement of donation and an agreement of gratuitous transfer of real estate. Conclusion of such agreements will result in the loss of claims under Article 36, paragraph 1 of the aforementioned Act. At the same time, the owner or perpetual usufructuary will not acquire the claim under Article 36, paragraph 3 of the above-mentioned Act. The conclusion of an agreement on gratuitous disposal of real estate may lead to the loss of claims for compensation for planning damage, even though the damage would not be compensated.
Legal status as at 31.07.2024