Poland: 5 Steps to Compensation for Establishing Organic Use

 

Establishing a form of nature protection is often associated with the loss of property value. The way to obtain compensation on this account is not easy.

The provisions of the Environmental Protection Law provide for a special procedure for obtaining compensation in the scope of determining the amount of compensation, referring to the Act on Real Estate Management. What steps should be taken to obtain compensation for the establishment of an ecological site?

Step #1 – Gather documentation

First of all, it is worth collecting documents confirming the ownership or perpetual usufruct right to the real estate on which the usufruct has been established. It is primarily about an extract from the land and mortgage register of the property and a notarial deed which is the basis for its purchase. It is also worth making sure that the resolution of the city council that established the ecological site has been published in the official journal.

Step #2 – Assess the impact of the nature conservation form on the property

It is also worth identifying what specific restrictions on the use of real estate have been introduced by the established form of nature protection. The catalogue of possible prohibitions in relation to a given form of protection is specified in the Nature Conservation Act. Prohibitions in relation to a specific form of nature protection should be listed in a resolution of the commune council. And so, a resolution establishing an ecological site may provide for a ban on earthworks. If the property in the zoning plan was intended for multi-family housing, the impact of establishing a form of nature protection on this property will be significant. It will not be possible to carry out construction works on such a property, which leads to a decrease in its value.

Step #3 – Valuation of the decrease in the value of the property

Next, the loss of value of the property caused by the establishment of a form of nature protection should be assessed. For the discussed case of establishment of ecological usufruct on real estate intended for residential construction, the difference in the value of the real estate before and after the establishment of the usufruct should be assessed. It is worth turning to a property valuer in this matter. Each property has its own specificity, and its purpose may determine the method of calculating the decrease in its value.

Step #4 – Claim Compensation

Now it is time to submit an application for compensation to the competent starosta. The starost determines the amount of compensation by way of a decision or dismisses the application. The starosta’s decision is not appealable. However, the applicant who is dissatisfied with the content of the decision has the right to file a lawsuit with a common court. The lawsuit must be filed within 30 days from the date of delivery of the starost’s decision. It may happen that despite filing an application for compensation, the starost will not issue a decision. In such a case, the applicant should file a lawsuit with the common court within 3 months from the date of filing the application with the starosta.

Step #5 – Proceeding before the court

The last step is to file a lawsuit with a common court (it is subject to a court fee). If a given form of nature protection was introduced by a resolution of the commune council, the lawsuit should be directed against the municipality that introduced this form of protection. A lawsuit for payment of damages should primarily show the amount of the decrease in the value of the property. The expert witness will assess whether this value has been given correctly. The owner of the property has the right to raise objections to the opinion of an expert witness. In particular, it is worth paying attention to the method of calculating the decrease in the value of the property, but also to whether the moment at which the condition of the property is assessed has been determined correctly. The court’s judgment is subject to appeal, and the judgment of the court of appeal is final and enforceable after the enforcement clause has been granted.

The process of obtaining compensation for the establishment of an ecological site is challenging, but it is not insurmountable! Gathering documentation and determining the approximate decrease in the value of the property are the first steps that allow you to file an application for compensation and assess whether the starosta’s decision is satisfactory. A dissatisfied property owner has the right to file a lawsuit, which requires determination. The Law Firm supports in the procedure of obtaining compensation for the establishment of a form of nature conservation, at every stage.

 

For further information, please contact:

Konrad Goszyc, Partner

Gorazda, Świstuń, Wątroba i Partnerzy adwokaci i radcowie prawni, Kraków

e: konrad.goszyc@gsw.com.pl

 

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