Demarcation proceedings - appeal against a signed settlement
What is the demarcation procedure, what is its essence, who conducts it, and what are the possible endings of such proceedings? In this article, we answer the question whether it is possible to conclude a settlement in such a case, as well as to whom and what are its obligatory elements. What is the impact of the settlement on the demarcation procedure and is it possible to appeal against the signed settlement and how should it be done?
The demarcation procedure is regulated in the Act of May 17, 1989 Geodetic and Cartographic Law. Pursuant to Art. 29, the purpose of such proceedings is to determine the course of real estate boundaries by determining the location of points and boundary lines, fixing these points with boundary marks on the ground and drawing up relevant documents.
All or some real estate boundaries are delimited with adjacent real estate or land.
The demarcation of real estate is carried out by the commune head, mayor or city president, respectively. However, activities in this respect are performed by an authorized surveyor. It is obvious that a specialist - a surveyor, has knowledge in the field of setting boundaries, but it does not have to be the head of the commune, mayor or city president.
Mr. Karol has a house on plot no. 50. It is adjacent to plot no. 52 to the north, to the south - 54, to the east - 44/5 and to the west - 42/3. A neighbor from plot no. 52 erected a fence on it, but in the opinion of Mr. Karol it was erected on its premises. Therefore, he asked the commune administrator to make a demarcation between the two plots. Its main purpose was to establish the boundaries of both properties. In such a case, plots no. 52 and no. 50 will be demarcated, while the remaining neighboring plots will not be the subject of the proceedings.
When setting limits, the following are taken into account:
border marks and traces;
excerpts from the land register, excerpts from the cadastral map and other documents;
points of the geodetic control network.
If such documents are missing or they are insufficient or contradictory, the course of the borders is determined on the basis of the unanimous declaration of the parties or of one party, if the other does not submit any statements and does not question the border.
The parties shall be notified in writing about the activities carried out by the surveyor on the ground, not later than 7 days before the designated date. Importantly, unjustified failure to appear does not obstruct the activities of the surveyor.If the party justifies his absence, then he suspends his activities, but for a period not longer than a month.
Therefore, if the party does not appear, does not inform about the failure to appear, he will have no excuse, then the surveyor will conduct his activities taking into account the statements of the party that did not appear. This may be disadvantageous, so it is worth ensuring your presence on the ground during the deadline or appointing a representative who will take part in them, and if this is not possible - justify your absence.
If there is a dispute between the parties as to the course of the border, the surveyor will persuade the parties to reach a settlement.
Such a settlement has the force of a court settlement. It is drawn up by a surveyor, and the parties appearing under it.
The settlement should include:
name and surname of the surveyor and the number of his professional qualifications;
the number and date of the decision to initiate the demarcation procedure and the authorization for the surveyor;
marking real estate by specifying their location, numbers of registration plots, numbers of land and mortgage registers or collections of documents;
information about the parties and their representatives;
list and assessment of documents constituting the basis for determining the course of borders;
submissions of the parties;
the results of the field interview;
description of the boundaries;
description of the fixation of boundary points;
instructing the party to transfer the case to the court;
mention that the document was read to the parties before signing it;
discussion of deletions and corrections;
the date of the document and signatures of the parties and the surveyor;
description of the subject of the dispute, specifying the boundaries indicated by the parties and resulting from the documentation;
description of mutual concessions;
a detailed description of the boundary which is declared obligatory after signing the agreement;
information that the concluded settlement has the force of a court settlement.
The impact of the settlement on the demarcation procedure
The head of the commune, mayor or city president is the authority conducting the delimitation proceedings. Although the settlement ends the dispute between the parties, its act itself does not formally end the proceedings in the case.
Formally, the proceedings in such a situation will end with the discontinuation of administrative proceedings pursuant to Art. 105 § 1 of the Act of June 14, 1960 - Code of Administrative Procedure. After the settlement, the demarcation procedure conducted by the local government unit becomes pointless.
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Mr. Karol, the owner of plot no. 50, initiated a demarcation procedure with the owner of plot no. 52, Mr. Marcin. The proceedings were initiated by the Head of the Nowa Wieś Commune. The mayor authorized the surveyor, Mr. Marian, to conduct the proceedings. In due time, he served on the parties a summons, all requirements were met. During the meeting and activities, the parties came to an agreement and an agreement was signed, on the basis of which the course of the borders was determined, which was included in the agreement by the surveyor. In such a situation, the Head of the Nowa Wieś Commune issued a decision to discontinue the administrative proceedings on the delimitation of the real estate.
Appeal against the decision in the dividing line proceedings
As a rule, the dissatisfied party has the right to appeal against an administrative decision issued by a commune head, mayor or city president.
The appeal shall be lodged within 14 days from the date of delivery of the decision in the case to the party.
The body to which the appeal is lodged is the locally competent Local Government Appeal Court, but through the competent commune head, mayor or city president. The appellant party therefore sends or submits the appeal in person to the municipal or city office which issued the contested decision.
Appealing against a signed settlement
Although it is possible to appeal against each administrative decision on the delimitation of real estate to the competent Local Government Appeal Court, not every decision is subject to the same control by the second instance authority.
The discontinuation of the proceedings due to the conclusion of the settlement is a completely different decision than the issuance of a decision on the determination by the competent head of the municipality, mayor or city president of the border route. Such a decision is a manifestation of the authority's power over the citizen, the owner of the property. In the event of a settlement, the head of the commune (mayor or city president) does not make any decisions himself, and discontinues the proceedings due to the fact that the parties to the demarcation procedure have reached an agreement on their own and his intervention and top-down decision are no longer necessary.
However, there may be a situation where the parties sign a settlement, the proceedings are discontinued, and one or both parties are not satisfied. The most common voices are that it was the surveyor who persuaded the party to sign the settlement or otherwise explained what the border would look like after the demarcation, and after receiving the copy of the settlement, it turns out that it is different than the person believed.
Then the question arises - how to appeal against such a settlement, how to avoid its effects? Can this be done in the normal course of the instance described above by lodging an appeal? It would seem that this is the easiest and fastest way.
However, according to the still valid judgment of the Provincial Administrative Court in Kraków of January 16, 2013 in the case III SA / Kr 392/12 in the case of a settlement before the surveyor, referred to in Art. 31 sec. 4 of the Geodetic and Cartographic Law, the demarcation procedure as irrelevant is subject to discontinuance pursuant to Art. 105 § 1 of the Code of Administrative Procedure. The decision to discontinue the administrative proceedings in relation to the conclusion of the settlement before the surveyor is subject to appeal in the course of the instance and to the administrative court. However, the scope of review of such a decision - both in the instance and in court - is limited only to examining the legality of the decision to discontinue the proceedings, and not the content of the settlement.
The control of the decision to discontinue administrative proceedings on the delimitation of real estate is limited only to the fact of concluding a settlement and examining its formal conditions - compliance of the settlement act with the provisions of § 21 of the Ordinance of the Ministers of Interior and Administration and Agriculture and Food Economy of April 14, 1999 on the delimitation of real estate, which contains the agreement template and specifies what data should be included in the settlement act, as well as the correctness of the activities preceding the settlement.
Therefore, the Local Government Appeals Tribunal will not verify that the party knew what the new boundaries would be, or understood everything - the fact of signing the settlement proves that it was aware of the consequences of the submitted declaration of will.
A party cannot, therefore, appeal in this way.
When a party is convinced that a signed settlement is inconsistent with what it planned, the correct procedure is to avoid its legal effects. This can only take place in proceedings before a common court. Therefore, it is necessary to submit a declaration to the other party to the settlement about evasion of the consequences of the settlement agreement, and then to bring the claim to the civil division of the competent district or regional court.