Acquisition of agricultural real estate by an entrepreneur
The acquisition of agricultural real estate depends on the fulfillment of a number of different conditions, and such a situation has been going on for several years. The main purpose of the regulations regulating this issue is to protect agricultural land against transfer to foreigners. Do the strict requirements for purchasing this type of real estate also apply to entrepreneurs?
Basic conditions for purchasing an agricultural property
It should start with a basic condition that must be met by anyone willing to purchase an agricultural property. Pursuant to the applicable provisions of the Act on the Shaping of Agricultural Property, such a buyer may be, first of all, an individual farmer who, in principle, does not apply a number of additional legal restrictions in this respect.
If the buyer of agricultural real estate does not have the status of an individual farmer (documented, for example, by graduation certificates of relevant schools), the purchase of such land will require the consent of the director of the National Center for Agricultural Support in order to be valid. It should be remembered that its absence is tantamount to the invalidity of the contract for the sale of an agricultural property.
Interestingly, this consent is not required for the acquisition of agricultural land:
by a close person of the seller (i.e. his spouse, descendants, ascendants, parents, siblings, children of siblings, siblings of parents, stepchildren, adopted or adoptive parents);
with an area of not more than 1 ha;
as a result of the abolition of joint ownership, division of inheritance or division of joint property after the termination of the marriage;
in the case of division - transformation or merger of companies.
Do the above restrictions mean a complete ban on the acquisition of agricultural real estate by entrepreneurs? It turns out that there is a way to purchase agricultural land also by natural persons conducting business activity or legal persons.
Purpose of the acquisition of agricultural land by the entrepreneur
Why would an entrepreneur buy an agricultural property? Of course, for running a business that involves growing plants or breeding animals. It is also possible to roll back the purchased plot and use it, for example, for the construction of warehouses or offices. Therefore, the entrepreneur has the option of purchasing agricultural real estate in Poland, provided, however, that the entire transaction complies with the provisions of the Act on the Shaping of Agricultural Real Estate.
When can an entrepreneur buy agricultural real estate?
Acquiring real estate is always an investment of capital - agricultural land is no exception. An entrepreneur who wants to become a buyer of such land must obtain the aforementioned consent of the director of KOWR.
However, it should be remembered that if the procedure for purchasing an agricultural property began before the entry into force of the amendment to the Act on the Shaping of Agricultural Property, i.e. before April 30, 2016, obtaining the above consent is not required. It will be similar in the case of the acquisition of agricultural property by way of court or bailiff enforcement (auction purchase or bailiff sale).
The above position is confirmed by the resolution of the Supreme Court of 18 May 2017, III CZP 13/17.
How to obtain KOWR approval for the acquisition of agricultural real estate?
Therefore, the purchase of agricultural land by an entrepreneur depends on obtaining a positive administrative decision of KOWR. For this purpose, an application must be submitted to the appropriate branch of the local center - the location of the agricultural property that the entrepreneur wants to purchase determines the property.
An application for consent to acquire agricultural land can be made by hand - there are no requirements for using the forms, as is the case, for example, in the case of submitting tax returns. On the other hand, it is worth emphasizing that ready-made application forms can be found on the official website of KOWR (www.kowr.gov.pl/).
Start a free 30-day trial period with no strings attached!
If you decide to prepare an application for KOWR on your own, remember to include:
designation of the seller and buyer of agricultural real estate (it is necessary to provide addresses of residence or registered office, full name - if at least one of the parties to the contract is a legal person, PESEL - in the case of natural persons;
marking of agricultural property in accordance with the data contained in the land and building register;
precise justification - the applicant must show why he wants to buy agricultural property, how he will use it and whether he is considering a possible transformation of its character (e.g. into a property intended for construction purposes). It is a good practice to indicate that the entrepreneur has agricultural experience and that his activity covers agricultural production in the field of plant or animal production;
clarification that a given agricultural property could not be purchased by other entities authorized to do so, in particular by individual farmers (e.g. due to the lack of persons willing to purchase a given plot);
applicant's signature - in the case of entrepreneurs who are legal persons, the signature must be submitted by a person authorized to represent a given enterprise (e.g. by the president of the management board of a capital company).
In order to be valid, the application for KOWR approval requires the submission of relevant attachments. They will be:
an excerpt from the land and building register for a given agricultural property;
an excerpt from the land and mortgage register of a given agricultural property or a certificate issued on the basis of a set of documents kept for the sold agricultural property;
declaration of the seller of the agricultural property on the intention to sell it to the applicant;
a certificate from the local spatial development plan specifying the purpose of a given agricultural property.
The entrepreneur may submit the application in person at the appropriate local branch of KOWR or by registered mail.
How long does the approval procedure by KOWR take?
The submission of an application for permission to purchase an agricultural property initiates administrative proceedings. In fact, there is no exact date by which the KOWR is required to issue a decision.
In accordance with the general principles contained in the Code of Administrative Procedure, the matter should be settled immediately, but not later than within one month from the date of submitting the application by the party. However, it should be remembered that in particularly justified cases, KOWR has the right to extend the deadline for examining the application - it must inform the applicant about it. The maximum deadline for settling the matter in question is two months.
If the applicant wishes to obtain approval quickly, he or she has the right to issue a reminder.
Acquisition of agricultural real estate after obtaining the consent of KOWR
Obtaining the consent of KOWR for the purchase of agricultural real estate means that the entrepreneur may conclude a contract for the sale of such land. Due to the fact that we are dealing here with land, a visit to the notary's office will be necessary. The notary's remuneration and the tax on civil law transactions depend on the value of the real estate purchased (the higher the price of the plot, the higher the fees will be).The notary fee depends on the value of the subject of sale and amounts to:
- if the value of the item is up to PLN 3,000 - PLN 100;
- over PLN 3,000 to PLN 10,000 - PLN 100 + 3% of the surplus above PLN 3,000;
- above PLN 10,000 to PLN 30,000 - PLN 310 + 2% of the surplus above PLN 10,000;
- over PLN 30,000 to PLN 60,000 - PLN 710 + 1% of the surplus over PLN 30,000;
- over PLN 60,000 to PLN 1,000,000 - PLN 1,010 + 0.4% of the surplus over PLN 60,000;
- over PLN 1,000,000 to PLN 2,000,000 - PLN 4,770 + 0.2% of the surplus over PLN 1,000,000;
- over PLN 2,000,000 - PLN 6,770 + 0.25% of the surplus over PLN 2,000,000, but not more than PLN 10,000, and in the case of transactions between persons classified in tax group I within the meaning of the Inheritance Tax Act and donations not more than PLN 7,500.
(§ 3 of the Regulation on the maximum rates of notary fees)
Entrepreneur and the right to acquire agricultural real estate
Every entrepreneur, regardless of the type of activity performed, has the right to acquire agricultural real estate in Poland. The basic condition, however, is obtaining the consent of the director of the National Agricultural Support Center, and then concluding a sales contract in the form of a notarial deed. The lack of consent of KOWR for the purchase of agricultural land means that the entrepreneur cannot effectively acquire such real estate.