Decision on development conditions - transfer to the heirs
What is a zoning decision, who issues it and in what situation? The essence of the article will be to answer the question whether such a decision can be transferred to the heirs. What if the addressee of the decision dies? Is it transferred to the heirs?
The decision on development conditions - the legal basis, in what circumstances is it issued?
The decision on development conditions and related issues are regulated in the Act of 27 March 2003 on spatial planning and development.
The decision on development conditions is issued when the investor plans to change the spatial development consisting in the construction of a building object, execution of other construction works, change of the use of a building object or its part, and there is no spatial development plan.
If there is no local spatial development plan, the construction of a building object requires a decision on building conditions and land development.
The authority competent to issue such a decision is the commune head, mayor or city president, after consultation with the competent authority indicated in art. 53 sec. 4 of the Spatial Planning and Development Act. In the case of closed areas, the decision is issued by the voivode.
Mrs. Marta lives in a small village in the Pomeranian Voivodeship. She has purchased a plot of land on which she plans to carry out construction works. It turned out, however, that there was no local spatial development plan in the town. Therefore, Mrs. Marta should submit an application for a decision on development conditions to the competent commune administrator.
Application for a decision on development conditions
The issuance of a decision on development conditions requires the submission of an application to the competent commune or city office, as well as the fulfillment of numerous statutory requirements.
A decision on development conditions is possible when:
at least one adjacent plot available from the same public road is developed in a way that allows to determine the requirements for new buildings in terms of the continuation of functions, parameters, features and indicators of building development and land development, including dimensions and architectural form of buildings, building lines and land use intensity;
the area has access to a public road;
the existing or planned utilities are sufficient for the construction project;
the area does not require permission to change the use of agricultural and forest land for non-agricultural and non-forest purposes or is covered by the consent obtained in the preparation of local plans that have expired;
the decision complies with separate regulations.
All of the above conditions must be met cumulatively.
The application must be accompanied by a basic or cadastral map of the plot. If the issuance of the decision concerns an investment that requires the issuance of an environmental decision, such a decision should also be attached.
Importantly, a decision on development conditions in relation to the same site may be issued to more than one applicant. Copies of decisions are delivered, apart from applicants, also to owners and perpetual users of real estate.
Therefore, in relation to the same plot, several or a dozen zoning decisions may be issued. It is important, however, that the decision on development conditions does not give rise to rights to the land, does not infringe the property rights and rights of third parties. Information about this content is included in the decision itself.
It should be remembered that the decision on development conditions does not constitute a building permit, but is only intended to indicate whether it is possible to carry out construction works on a given property or change the use of a building object or its part. Such a decision is the formal basis for applying for a building permit.
Importantly, such a decision is indefinite. However, it may be terminated ex officio in a situation where a local spatial development plan is adopted for a given area and the issued decision does not comply with it.
The draft decision on development conditions is prepared by a person who has the appropriate powers in this regard - these entities are listed in Art. 5 of the Spatial Planning and Development Act or by a person entered on the list of the chamber of professional self-government of architects who has construction qualifications to design without restrictions in the architectural specialty or construction qualifications to design and manage construction works without restrictions in the architectural specialty.
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Transfer of the zoning decision to the heirs
It is not uncommon for a person who has obtained a zoning decision to die. Most often, it leaves heirs who would like to take over the zoning decision obtained by the legal predecessor. Is it possible?
Mrs. Marta, who obtained a zoning decision in a small town in the Pomeranian Voivodeship, died. She left a circle of heirs - a husband and a daughter. She didn't make a will. Pursuant to the provisions on inheritance law, her husband and daughter inherit half of them. She died, apart from real estate and movable property, she also had a decision on zoning.
The institution of transferring the decision on development conditions is regulated in Art. 63 sec. 5 of the Spatial Planning and Development Act. Pursuant to this provision, the authority which issued the decision on development conditions is obliged, with the consent of the party to whom the decision was issued, to transfer the decision to another person, if that person accepts all the conditions contained in the decision.
The interpretation of this provision indicates that the authority - the commune head, mayor or president of the city, is obliged to transfer the decision on development conditions with the consent of the party on whose behalf the decision was issued.
It follows from the above that the decision on development conditions is transferable - it can be transferred to other people.
In the presented example no. 2, taking into account the literal wording of the provision, Ms Marta herself would have to consent.
Considering the fact that such a decision is issued irrespective of the ownership right, the acquisition of the property right, which is covered by the zoning decision, is not tantamount to the acquisition of this decision.
In the jurisprudence and legal doctrine, two views were distinguished in the field of transferring the decision on land development conditions to the heirs of the addressee:
separate administrative procedure.
Pursuant to the provisions of the Civil Code concerning inheritance law, upon the death of the testator, the rights and obligations of the deceased pass to his heirs. As a rule, administrative decisions are not inheritable and expire upon the death of their addressee. However, it should be pointed out that the zoning decision is not related to the addressee, but to the real estate it concerns.
According to this position, after the death of the addressee of the decision on land development conditions, his heirs may exercise the rights arising therefrom or submit a declaration of consent to the transfer of this decision to another entity. In order to be able to exercise the rights under the zoning decision, one must present a legally valid court decision declaring the inheritance acquired after the deceased addressee of the decision or an inheritance certificate drawn up by a notary public.
However, the case law of voivodship administrative courts indicates that in order to transfer a decision on development conditions, the conditions set out in the act on spatial planning and development relating to the transfer of a decision must be met.
It is also argued that such a decision is personal, which makes it non-inheritable. In such a situation, Marta's heirs would not have any rights to the issued zoning decision.
Importantly, the provisions of the Spatial Planning and Development Act do not contain regulations regarding the inheritance of zoning decisions. Also, the issue of transferring the decision to the heirs was not raised. Both views should therefore be borne in mind. Assessing them, it can be indicated that the negotiable nature of the zoning decision and its close connection with the real estate, and not with the addressee, support the view on the inheritance of rights and obligations from the zoning decision.
The fact that there are such contradictions leads to the conclusion that the legislator should regulate this issue in the Act on spatial planning and development in order to eliminate the existing discrepancies, lead to the issuance of coherent decisions by the authorities and facilitate the heirs' implementation of construction investments, so that they do not have to apply for similar decisions, but on their personal data, assuming that the authorities only examine the properties of the property, while the applicant's personal qualities are irrelevant in such cases.