What is the legal basis for entering someone else’s real property under construction law?
Article 47 of the Construction Law (consolidated text: Journal of Laws of 2023, item 682; hereinafter: PrBud) states that if it is necessary to enter an adjacent building, apartment, or adjacent real property to perform preparatory work or construction work, the investor is required to obtain the consent of the owner before commencing work and agree with them on the expected manner, scope, and deadlines for using these objects, as well as any compensation that may be due. In case of disagreement, at the request of the investor, the competent authority decides on the necessity of entry, specifying the boundaries of the necessary need and the conditions for using the property.
What was the actual situation in the case?
The applicant submitted a request for a decision allowing entry onto the plots adjacent to her property in connection with renovation and construction work. The planned work was in accordance with the decision approving the construction project and granting permission for an extension to the house. The investor asked the neighbors for permission to enter their plots, but one of them stated in writing that he did not consent to it. The County Governor granted the request and ruled on the necessity of entering the adjacent property for a period of 7 days. Subsequently, as a result of an appeal by the owners of the adjacent plots, the Voivode upheld the County Governor’s decision.
Legal basis for entering someone else’s real property
The Voivodship Administrative Court (WSA) – it is necessary to demonstrate efforts to obtain consent for entry onto the adjacent real property
The Voivodship Administrative Court, in dismissing the complaint of the owners of the adjacent plots, emphasized that the permit referred to in Article 47 of the Construction Law may relate only to works of a legal nature. Therefore, a decision can be issued only after the investor has obtained a building permit or made a successful notification of the intention to carry out construction work, and the applicant already had a final building permit at the time the proceedings were initiated.
The Supreme Administrative Court (NSA) – Article 47 of the Construction Law is intended to expedite the resolution of neighborly disputes
The Supreme Administrative Court stressed that conducting unsuccessful negotiations with even one of the co-owners means that it is impossible to obtain consent to occupy someone else’s property, which is an act that goes beyond normal management and requires the approval of all co-owners in accordance with Article 199 of the Civil Code. Conducting unsuccessful negotiations is a condition for submitting an application under Article 47 of the Construction Law, and it is sufficient for the decision to issue a building permit to be final and enforceable. Under the current legal framework, the investor generally has the right to commence construction work based on a non-final building permit.”
Source: NSA judgment file no. II OSK 2022/20 dated June 6, 2023.