Property law: Preoccupied with permits

However, uncertainty arises as to whether the occupancy permit remains valid when previous decisions granted in favor of the investor (i.e. the zoning decision or building permit) are declared invalid by authorities of a higher degree. A matter of great concern is whether it is possible to be deprived of the right to use the building in these circumstances.

According to Polish construction law, the issuance of an occupancy permit is not dependent on the grant of any other permit. The process of issuing an occupancy permit is initiated by the investor notifying the construction authority that the construction process has been completed.

The inspector calls

After the authority has received notice of such completion, a mandatory inspection of the developed site is carried out in order to ascertain that the development was conducted in accordance with the zoning project and construction design.

The inspection by the construction authority should also ascertain that the local authorities dealing with the prevention of fire, public health, conditions of employment, and protection of the environment (or any other local authority if applicable) did not object to the use of the building. The materials used in the development are subject to examination to ensure that they comply with the requirements imposed by safety provisions.

Pursuant to the judgment of the administrative court in Warsaw, in the event the building permit or zoning decision are declared invalid, the authority issuing the occupancy permit should take into account the development conditions set by the local zoning plan and check whether the development was conducted in accordance with the construction design. Moreover, the Supreme Administrative Court has stated in two judgments that the change of designation of the property in the applicable local zoning plan does not constitute a basis for reopening the administrative proceedings concerning the issuance of the occupancy permit.

Consequently, in a situation where an investor obtains the final and binding occupancy permit, any subsequent acts invalidating the zoning plan, zoning decision or the building permit cannot deprive such investor of its right to use the constructed building.

Terms and conditions

The above reasoning seems to address the problem, especially in relation to the decisions which are invalidated due to procedural errors. Nevertheless, it does not provide a clear solution where there is no local zoning plan applicable to the property and the zoning decision was invalidated. Such an issue should be clarified by the jurisprudence of the courts.

However, the investor must bear in mind that the above does not mean that the occupancy permit is granted indefinitely. An occupancy permit may impose certain requirements that must be satisfied by the investor while using the building. Not complying may result in the investor being deprived of the right to use the building.

The investor is always required to act in compliance with zoning and construction decisions granted in its favor. Nonetheless, even if some of these decisions are declared invalid after the building is erected and occupancy permit is granted, the investor need not worry.

If the building permit or zoning decision is challenged by a third party before the construction works are completed, the best way to avoid problems is to complete the works and obtain a final occupancy permit before the decision declaring the building permit invalid becomes final and binding. Due to the fact that this decision may be challenged by the investor before the administrative court, and court proceedings in Poland are usually time-consuming, the above described risk is not as great as it first appears.

Paweł Lis is a junior associate at Linklaters law firm. E-mail: pawel.lis@linklaters.com