Real estate /

The sale of real estate does not exempt from the obligation to reclamation

Pursuant to the provisions of the Act of February 3, 1995 on the protection of agricultural and forest land (Journal of Laws 2017, item 1161) (hereinafter: „PLA”), a person causing the loss or limitation of the value in use of agricultural or forestal land is obliged to reclaim it for its own expense. The reclamation obligation is stated in the starost’s decision.

A common mistake in transactions involving real estate subject to the obligation of reclamation, e.g. in the area of mining activity, is the belief that the seller is convinced that the obligation of reclamation is transferred by virtue of law to the buyer of the real estate. This error is largely due to the analogous treatment of reclamation decisions and decisions allowing for the exclusion of land from agricultural or forestry production. In the case of the latter, the obligation to pay annual fees and charges is transferred to the buyer of the property, which results directly from the provisions of the Act (Article 12 section 3 and 4 of the PLA).

On the other hand, the reclamation obligation specified in the administrative decision, as indicated in the jurisprudence, is each time related to the activity causing the loss or limitation of the use value of the land. The absolute reclamation obligation resulting from the Act on the Protection of Agricultural and Forest Land, specified in the administrative decision, is of a public law nature and constitutes the implementation of the principle of ecological safety and environmental protection resulting from Art. 74 sec. 1 and 2 of the Polish Constitution. Therefore, it may not be transferred to the buyer by way of a real estate sale agreement or other agreement obliging the buyer to carry out land reclamation (see Judgment of the Supreme Administrative Court of August 7, 2018, II OSK 2090/16).

Change of the person obliged to reclamation pursuant to Art. 20 sec. 6 PLA in the light of the prevailing jurisprudence, it is allowed only for the benefit of another person causing the loss or limitation of the value in use of land within the meaning of Art. 20 sec. 1 PLA (see Judgment of the Provincial Administrative Court, seat in Lublin of April 26, 2019, I SA / Lu 947/18).

The inability to freely transfer the rehabilitation obligation to the buyer of the property implies a transaction risk that the seller must take into account in the contract for sale of the real property. In such a situation, it is in the interest of the seller to secure the right of access to the property being sold in order to fulfill the reclamation obligation, without exposing himself to, inter alia, the risk of imposing an increased fee in the event of failure to complete the reclamation on time (Article 20 section 4 of the PLA).

Author team leader DKP Legal Marcin Kręglewski
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