Transferability of claims for compensation for planning damage
The legislator provides for three claims for compensation of the damage caused by the enactment or amendment of the local plan, i.e. a claim for compensation for the actual damage suffered, a claim for redemption of the property or part of it or a claim for compensation for the reduction in the value of the property.
Legal science and jurisprudence have considered the problem of the assignability of these claims, i.e. the possibility of transferring these claims to another entity and the subsequent enforcement of these claims by another entity.
Assignment of claims (transfer)
Pursuant to Article 509 § 1 of the Civil Code, civil law claims are, in principle, transferable, i.e. the creditor (the person entitled on account of the claim) may, without the consent of the debtor (the person obliged on account of the claim), transfer the claim to a third party (what is referred to in legal language as an assignment), unless this would be contrary to the law, a contractual stipulation or the nature of the obligation. It is assumed that, as a general rule, all property and civil law claims are assignable.
Planning damage claims are civil and property law claims. However, the question of their transferability was considered because of the relationship in which these claims stand in relation to each other. A claim for compensation for actual damage suffered is alternative to a claim for redemption of the property. In contrast, both of these claims are alternative to a claim for compensation for a reduction in the value of the property. This means that the injured party must choose one of them. It is not permissible to assert all claims simultaneously in the same factual situation. The entitled person cannot claim compensation for the actual damage suffered and redemption of the property or part of it. If one claim is pursued, the others lapse.
Transferability of a claim for compensation for a reduction in the value of property
The transferability of the claim for compensation for the reduction in the value of the real estate, which is payable in the event of disposal of the real estate after the entry into force of the local spatial development plan, regulated by Article 36(3) of the Act of 27 March 2003 on spatial planning and development, is not in doubt.
Transferability of a claim for compensation for actual damage suffered or for the redemption of immovable property or part thereof
In turn, the issue of transferability of claims under Article 36(1) of the Act of 27 March 2003 on planning and spatial development poses difficulties. Recently, the Supreme Court expressed its opinion on this issue in the decision of 4.10.2022 in the case ref. III CZP 99/22, assuming that the claim for compensation for the actual damage suffered is non-transferable. In the science of law, the position on this issue is divided. However, it seems that the view on the non-transferability of both claims under Article 36(1) of the Act of 27 March 2003 on planning and spatial development is correct. Indeed, the above claims are connected with the right to choose to assert one of them, which admittedly does not take the form of a claim, but a formative subjective right. As a result, they should be vested in the same entity. At the same time, it is undisputed that the realisation of the claim for redemption of the real estate would require the transfer of the right to the real estate to the purchaser of the claim. If, on the other hand, the right to the real estate is transferred, a claim for compensation for the actual damage suffered or the redemption of the real estate or a part of it is replaced by a claim for compensation for the reduction in the value of the real estate. The above relationship means that claims under Article 36(1) of the Act of 27 March 2003 on planning and spatial development should be regarded as non-transferable.
Legal status as at 17.07.2024
