Poland (2015)

Polish law applicable to resettlement Definitions

In Polish law one may distinguish situations, when rights to the properties are acquired subject to the civil law agreement, which method for the purpose of this Report is further referred to as voluntary resettlement. On the other hand expropriation may be carried out subject to the administrative decision. This procedure is referred to as involuntary resettlement. In involuntary resettlement the level of compensation is determined by the competent authority. Both these categories are regarded as involuntary resettlement by World Bank policies in that in neither case does the affected party have the option of not resettling.

Legislation

Legal procedures governing land tenure, resettlement and land and asset evaluation are covered by the Act of Management of Real Properties (MoRPA).

Legal procedures governing resettlement caused by investment implementation within the scope of flood control structures are determined by act of July 8, 2010 for special rules of preparing to investment implementation within the scope of flood control structures - Journal of Laws Dz. U. 2010, No. 143, item 963(called later “special law”).

Voluntary resettlement

Under the notion of voluntary resettlement is contained voluntary sale of real estate for public purpose investment reached by agreement between the eligible party and competent public authority dealing with resettlement. In the premises, compensation may not be offered to any entity other than the landowner or those holding rights to the property, or (in particular situations) to those holding limited subject matter rights to the property. Tenants may be compensated through legal relation with the letter on hire.

Occupiers without legal title to the property they occupy are in principle not covered by MoRPA or special law.

Involuntary resettlement

a. General

Within the light of special law involuntary resettlement is allowed for the purpose of flood control structure which is a public purpose by taking over right to property which is necessary for flood control structure implementation for State Treasury or local government units with the day on which permit authorising investment implementation becomes final.

By authority of special law in relation to real estate which are not indispensable for flood control structure implementation but which are necessary for its functioning, (major part of the reservoir bowl) their use is permanently limited with the day on which permit authorising investment implementation becomes final.

b. Eligibility

According to special law the following parties are eligible to get compensation for expropriated real estate:

real estate proprietors
perpetual usufructu areas
persons with limited proprietary rights to real estate

Special law anticipates compensation for losses caused by expiry of tenancy agreement referred to real estate which is property of State Treasury or local administrative unit.

c. Appeals

Special law gives opportunity to file an appeal against the permit authorising investment implementation at higher instance authority (Ministry for Engineering, and Spatial Economy). The party appealing against the decision determining the amount of compensation, however, receives, at its request, the amount agreed in the decision. The amount paid is not with prejudice to the pending appeal procedure.

d. Compensation

According to special law amount of compensation is decided on by means of agreement between the investor and hitherto proprietor, perpetual usufructuary, or person with limited proprietary right to real estate. If within 2 months since the day on which permit authorising investment implementation became final the agreement is not made, the amount of compensation will be decided on by voivod.

If a hitherto proprietor or perpetual usufructuary of real estate which is an object of the permit authorising investment implementation, respectively, hands over the real estate and leaves the premises within legally binding deadlines compensation shall be augmented by 5% of value of the real estate or perpetual usufruct right.

If permit authorising investment implementation regards real estate built-up with a living accommodation or a building with an isolated living accommodation, amount of compensation falling to hitherto proprietor or perpetual usufructuary who dwells the said living accommodation is augmented by PLN 10 000 in relation to the real estate.

According to special law, if on real estate there are localized facilities serving own tasks performance of territorial administrative units, realized with the use of financial resources coming from European Union budget or other foreign resources, amount of compensation will be augmented by the sum of subvention subject to refund coming from subvention together with interest due to provisions regulating conditions for repayment of subventions.

e. Expropriation

Proprietor or perpetual usufructuary is obliged to hand over of real estate vacating living accommodations and other rooms within deadlines determined in the permit. If the decision was made promptly enforceable proprietor or perpetual usufructuary is obliged to hand over of real estate vacating living accommodations and other rooms within 90 days. If the obligation is not kept real estate will be taken by administrative execution.

Gaps between law and WB policies

Eligibility: Under Polish law, the benefit (in the case of voluntary resettlement) or compensation (in case of expropriation) entitled to such persons, which have a formal right to the property entitlement to the get benefits / compensation.

Under the World Bank policies compensation is also due to those with no legal rights.

It appears therefore, that with the possible exception of occupiers without legal title, there is no difference of substance between the provisions of Polish law and the policies of the World Bank in respect of eligibility. At the time of preparation of the RAP there are no knowing illegal occupiers.

Compensation:

If a displaced person chooses to be compensated in money there are no significant gaps between the compensation entitlements due under Polish voluntary resettlement and those required by the World Bank. The value of the offered property may exceed the value of the property which is a subject to expropriation. Under Polish practice the affected person will be required to pay the difference between the cost of the alternative property and the value of the expropriated property, in case the value of the alternative property exceeds the value of expropriated one. In case of a deal between State Treasury and territorial administrative units the value of real estate which is purchased can differ from value of real estate which serves as the compensation.

There is a significant difference as far as depreciation of real estate is concerned as, under WB policy, it is not accounted for while assessing real estate value.