Swap agreement as a means of redressing planning damage

The legislator has provided in Article 36 of the Act of 27 March 2003 on planning
and spatial development for three types of claims to compensate for planning damage. In addition to the claims, Article 36(2) of the above Act also regulates a special institution aimed at compensating for planning damage. In fact, on the basis of the above provision, the municipality may offer the owner or perpetual usufructuary a replacement property. As of the date of conclusion of the swap agreement, the claims expire.

Municipal consent required

It is important to note that this method of remedying planning damage requires the consent of the municipality. The opposite is true for the realisation of claims for compensation of planning damage. The realisation of claims under Article 36(1) and (3) of the above Act does not require the consent of the municipality. Instead, the conclusion of a swap agreement is effected by the submission of two consensual declarations of intent by both parties to the agreement, i.e. the municipality acquiring from the aggrieved person the property on which the planning damage has become apparent and the aggrieved person selling the property to the municipality. The effect of the swap agreement is the transfer of ownership of the property on which the adverse effects of the local plan have become apparent from the aggrieved person to the municipality and the transfer from the municipality to the aggrieved person of ownership of another property from among the resources of the municipality.
The selection of the replacement property is done in cooperation between the two parties, as is the implementation of this institution in general. The municipality cannot force the aggrieved party to accept a specific property designated by it, and the aggrieved party cannot demand the transfer of a property chosen by it from among those available in the municipality’s stock.

Principle of freedom of contract

The legislator does not elaborate on whether the value of the replacement property should correspond to the value of the property that the injured party sells to the municipality before the damage was caused. The parties are left free to determine the terms of the swap agreement. A swap agreement that results in the injured party receiving a property worth less than his own property from before the damage was caused will be valid (in the absence of other legal defects, of course). This does not mean, however, that the entity acting as the injured party must agree to accept the property designated by the municipality. In the absence of the willingness of the parties, the swap agreement does not come into effect and the aggrieved party is left with the judicial route.
Legal status as at 3.07.2024