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Lack of consent of the neighbor may stop the investment even after obtaining a construction permit

Lack of consent of the neighbor may stop the investment even after obtaining a construction permit

There is a widespread belief among investors that the issuance of a construction permit enables unhampered implementation of a construction venture without the need to apply for further permits or consents. Indeed, in many cases, obtaining a construction permit ends a tedious and time-consuming process of collecting legally required decisions, in particular decisions on development conditions, environmental decisions or a permit of the conservation officer to carry out construction works in the vicinity of the monument.

A construction permit is not enough
Sometimes, however, the planned construction venture requires entering the neighboring building, premises or the area of ​​the neighboring property. It should be borne in mind that the decision on the construction permit does not constitute a legal title to use the neighboring property for the execution of construction works covered by the permit. In such a situation, the investor is obliged to obtain the consent of the owner of the neighboring real estate, building or premises before work commences. In the case where the neighboring premises are occupied by the tenant, it is also necessary to obtain his or her consent. Granting consent requires agreeing on the expected manner, scope and time of using the neighboring property, which usually involves the need to pay an appropriate remuneration by the investor.

However, it often happens that a neighbor does not agree to use his real estate for the duration of construction works, even in spite of the generous financial offer of the investor in exchange for consent. Then what?

Substitute consent of the authority
If the neighbor does not want to give his consent, it is possible to obtain a substitute consent of the architectural and construction administration body (starost, city president or voivode). The authority may grant such consent if it considers that entering the neighboring property is necessary for the execution of construction works. In the decision, the authority shall at the same time define the limits of the necessary need and the conditions for using the neighboring building, premises or real estate. In addition, the authority's decision should specify the date by which the investor may use the neighboring property in order to carry out preparatory works or construction works.

After the completion of the works, the investor is obliged to repair the damage caused as a result of using the neighboring property, building or premises. It should be borne in mind that the decision of the authority may be appealed by the neighbor to the authority of higher instance and then to the administrative court. In addition, issuing a substitute consent may encounter formal obstacles when the neighbor property’s owner is unknown or the property has an unregulated legal status.

Execution of construction works on the neighboring property
Substitute consent of the authority entitles the investor to reside, during the performance of works, on the neighboring property and to set up the needed equipment (e.g. construction equipment or scaffolding for construction of building alongside plot's boundaries). However, it does not entitle the investor to build or demolish any building elements on the neighboring property, even if this is temporary. Execution of construction works on the neighboring property constitutes a far-reaching interference with the right of ownership and may take place only with the consent of its owner.

Careful planning of a construction investment requires prior agree of the rules of use of neighboring properties with their owners and securing the interest of the investor and neighbors by conclusion of relevant agreements.



Marcin Kręglewski

Lawyer

Marcin Kręglewski

Barrister, Partner

Marcin Kręglewski

Contact:

Rondo ONZ 1
00-124 Warsaw