Thursday, 7 October 2010 Polish Construction Review – Issue No. 10 (115)

tual established pursuant to a non- binding Act would be subject to the regime under which that right was established until its expiry, and that in creating a new the rational legislator is expressing current legi- The consequences of the obligation slative policy, it is correct to rule that in every case the content and scope of the perpetu- of the perpetual usufruct holder to al usufruct right is defined by binding legal regulations. The regulations in the current maintain buildings in good repair AARP make no express provision for the po- ssibility of terminating a perpetual usufruct right due to failure to maintain buildings in “The perpetual usufruct holder should explo- ins a regulation providing for the possibility good repair. Thus the legislator has changed it the land in accordance with its designated of terminating a perpetual usufruct the premises to be fulfilled in order for the purpose and maintain any buildings on the owing to failure to maintain buildings in good conditions for terminating a perpetual usu- land in good repair”. The inclusion of this repair. The answer to the question posed in fruct right to be met, by annulling the pre- clause in the decision establishing perpetu- the preceding paragraph is thus reduced to mise of failure to maintain in good repair al usufruct often causes doubt as to the true establishing what regulations are applicable buildings granted in perpetual usufruct with extent of the holder’s rights in respect of the to perpetual usufruct agreements established land. As a result, the investor who demolishes buildings on the land. pursuant to the Act now repealed. The AARP existing buildings should not be risking char- Perpetual usufruct is the right most clo- does not include clear transition regulations, ges of violation of the obligation to maintain sely resembling ownership (the concept of which means that identifying the relevant in- the buildings in good repair. However, it is temporary ownership), restricted only by the tertemporal standard will not enable us to not, of course, possible to rule out a different period for which it is established (between 40 state unequivocally whether the relevant re- interpretation of these regulations by a court, and 99 years) and obligations arising from the gulations in the AARP apply to a professio- which could assume that the obligation im- contract or legal regulations. Perpetual usu- nal usufruct right established pursuant to the posed to maintain the buildings in good re- fruct decisions issued pursuant to the Act of Act. pair remains in force due to the fact that it 29 April 1985 on administration of land and Owing to the brevity of this article, there was founded in law when the perpetual usu- expropriation of (unified text is no room for extensive discussion of transi- fruct was established. – Journal of of 1989, No. 14, item 74, tion regulations and intertemporal standards. As an aside to these questions, it would amended) (“the Act”), very often imposed on There are, however, grounds for offering also be worth analysing a situation in which the perpetual usufruct holder the obligation a few guidelines that we feel provide justifi- the perpetual usufruct did expire as a result to maintain buildings in good repair. There cation for applying the current regulations to of termination. In such a case, pursuant to were serious consequences for failure to di- perpetual usufruct established pursuant to Article 33 par. 2 of the AARP, the holder of scharge this obligation: pursuant to Article the Act now defunct. In creating a new law, the perpetual usufruct will be due remunera- 30 par. 3 of the Act, a perpetual usufruct con- the legislator is expressing current legislative tion for buildings and other apparatus erec- tract on a plot may be terminated for failu- policy and has an interest in seeing the two ted by him, to a value established on the day re to maintain in good repair buildings and legal regimes unified as rapidly as possible. If, on which the perpetual usufruct expired. apparatus granted in perpetual usufruct with however, we were to assume that a perpetu- Moreover, pursuant to Article 33 par. 3 of the the land. It would therefore be useful to have al usufruct established pursuant to an Act no AARP, if the perpetual usufruct is termina- an explanation of what the clause “mainta- longer binding was subject to the regime of ted, the first payment made for the profes- ining buildings on the land in good repair” that Act until its expiry, this would produce sional usufruct is reimbursed, as is the sum actually entails. a situation in which two legal regimes were of annual payments made for the period of Let us assume, for the purposes of this ar- operating in parallel, which would hinder perpetual usufruct not exploited, valorised as ticle, that the investment intention of the in- the full implementation of the authorities’ le- appropriate. However, the maximum reim- vestor who purchased the perpetual usufruct gislative policy. This could cause legislative bursable sum may not exceed the value of the rights with the obligation to maintain in good chaos and would be unacceptable in terms of perpetual usufruct right as established on the repair the buildings on the property is to de- the transparency of the legal system. It is also day on which the perpetual usufruct was ter- molish the existing buildings and erect an of- important to point out that in cases of long- minated. No remuneration is payable for bu- fice building on the plot. In this situation, if term legal relationships, such as perpetual ildings erected in violation of the agreement the existing buildings were demolished, wo- usufruct, new regulations are directly appli- or of the decision confirming the acquisition uld this be grounds for the termination of the cable. A further indication in this respect is of the perpetual usufruct. perpetual usufruct? also Article 240 of the AARP, which indicates First of all, at present the issue of termi- that where binding regulations cite acts repe- nation of perpetual usufruct is regulated by aled by Article 241 or make general reference Filip Grzesiak Article 33 of the Act of 21 August 1997 on ad- to land administration and property expro- Kancelaria Adwokatów i Radców Prawnych ministration of real property (unified text – priation regulations, the regulations to be ap- Miller Canfield W. Babicki A. Chełchowski i Journal of Laws of 2004, No. 261, item 2603, plied are those of the AARP as appropriate. Wspólnicy Sp.k. amended) (further: “the AARP”). The AARP, Given that there are no intertemporal laws [email protected] which superseded the Act, no longer conta- that provide for a situation in which perpe- www.millercanfield.pl

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