Pozwolenie na budowę jest jedną z niewielu decyzji administracyjnych, które mogą zostać przeniesione na inny podmiot. Ponieważ zmiana podmiotu dysponującego prawami do nieruchomości nie powoduje sukcesji praw z decyzji indywidualnej wydanej poprzedniemu inwestorowi, obrót nieruchomościami objętymi już wydanymi pozwoleniami umożliwia przepis art. 40 Prawa budowlanego. Jeśli tylko spełnione są przesłanki z tego przepisu organ, który wydał decyzję o pozwoleniu na budowę, jest obowiązany przenieść to pozwolenie na nowego inwestora.

This provision, as it currently stands, is so much out of step with the market situation that it does not, in principle, speak of the permissibility of transferring a construction permit in part. The provision speaks of transferring a “construction permit,” which, if interpreted literally, can be understood as the entire decision, covering the entire planned investment. Commercial construction projects, however, often include a complex of buildings, often with different purposes, which is technically a collection of smaller projects that can function independently. The market has therefore forced jurisprudence and doctrine to expand the practice of applying Art. 40 of the Construction Law also to situations of transferring a part of the construction permit, which includes such a self-contained element of the project. Indeed, the case law of the Supreme Administrative Court has accepted (e.g., in the judgment II OSK 679/06) that Art. 40 of the Construction Law does not impose any restrictions from which the prohibition of transferring the decision allowing construction in relation to a specific part of the project, as long as it can be separated. The courts take the position that this is in line with other regulations, m. inter alia, from Art. 33 para. 1 of the Construction Law, which allows, after all, the issuance of separate permits for individual elements of a construction project. In addition, more recent case law indicates that the September 2020 amendment. amended Art. 40 in that it removed the new investor’s obligation to accept all the terms and conditions contained in the permit (the law now simply speaks of taking over the terms and conditions from the decision). Thus, the courts have held that since the investor no longer has to accept “all” of the conditions from the entire permit – all the more indication that only part of the permit can be transferred.

The legislature recognized that case law was patching up the loophole and prepared an amendment to the Construction Law that included an amendment to Article. 40 so that it already officially includes the transfer of building permits in parts. The permissibility of splitting a construction permit will, of course, depend on whether all parts of the intention can function independently after splitting, and this will have to be demonstrated in the proceedings for transferring parts of the permit. The new investor will have to declare that he accepts the conditions arising from the part of the permit he receives, as well as hold the right to dispose of the property for construction purposes.

The draft amendment also imposes a new condition, according to which the new developer will have to declare that it has received a construction project from the existing developer in a form that allows it to be used for construction purposes.

The proposed amendment therefore meets the needs of investors and removes the element of uncertainty related to whether it is certain that the transfer of part of the permit will be considered permissible in a given case. For many years, the team of Jabłoński Kozminski & Partners has been providing legal assistance in the broadly understood construction law and investment process in all civil-legal and administrative-legal aspects of the investment process and real estate trading within the Real Estate and Construction Law practice.

In our opinion, the introduction of an amendment to the Construction Law regarding the transfer of a portion of construction permits is the right step towards adapting the regulations to the real needs of the real estate market. The amendment to Art. 40, which is expected to enable the official transfer of a portion of construction permit decisions, is a welcome response to the challenges faced by investors and could help facilitate real estate transactions and more efficient construction projects.