Category: Knowledge

Pursuant to the Act on Housing Cooperatives, by default the management board should convene a general meeting at least once a year within 6 months after the end of the financial year. In practice this means that a general meeting of members should be held no later than June 30th each year. The date of holding a general meeting is often of significance for the moment when the term of office of members of the cooperative’s governing bodies, especially supervisory boards, ends. Often the statutes link the term of office with the moment the general meeting is held.

The provisions of the “Covidowa” Law (Law on Amendments to the Law on Special Arrangements for Preventing, Counteracting and Combating COVID-19) due to the state of epidemic extended the term of office of housing cooperative’s governing bodies. According to Article 90 of the cited Act, the deadline for convening a general meeting of a cooperative that falls during a state of epidemic or epidemic threat is extended. Therefore, the management board may postpone the convening of a general meeting for up to 6 weeks after the state is revoked.

In connection with the foregoing, the legislature also extended the term of office of members of housing cooperative’s governing bodies by enacting the provision of Article 90a according to which, “If the term of office of a cooperative’s supervisory board or board of directors expires during a state of epidemic emergency or a state of epidemic which is in effect on the day this Act comes into force or which is declared to be in effect immediately after the period in effect on the day this Act comes into force, it shall be extended until the date on which the first general meeting of the cooperative is convened within the period referred to in Article 90.”

A legal norm has been adopted that by law extends the term of office of the supervisory board or management board if the term of office has expired or will expire during a state of epidemic emergency or a state of epidemic. Some practitioners indicate that, as a result of this norm, the term of office of the members of the bodies has been extended until the expiration of the period indicated in Article 90 (i.e., 6 weeks after the cancellation of the epidemic state).

The above view is incorrect and does not deserve to be accepted.

It should be noted that the Act on Housing Cooperatives and analogously the “Covidava” Act set the maximum, limiting deadline for the management board to convene a general meeting which may also be held prior to this date.

There is no provision that would prohibit holding a general meeting during the state of an epidemic (only sanitary-epidemiological restrictions apply which may make it difficult or impossible to hold a meeting during such period).

Article 90a extends the term of office of supervisory boards, but only until the first general meeting is convened during the extended period (“the period referred to in Article 90”) in which a general meeting should be held. Thus, if the managemet board calls a general meeting of its members during the epidemic or up to six weeks after its cancellation, the term of office of the members of the governing bodies will be extended, but only until the general meeting is held. Article 90a does not provide that the term of office is extended until the end of the period referred to in Article 90, but only until the first general meeting is held during that period.

The same position was expressed by the Polish Revision Association of Housing Cooperatives  (“on the statutory extension of the term of office of the governing bodies of housing cooperatives and the possibility to convene a general meeting in a stationary format”).

In the opinion of the Association, the notion of convening the first general meeting within the deadline referred to in Article 90 should be understood as the first general meeting in a stationary format convened between the period from the entry into force of the Act of 19 June 2020 on interest subsidies for bank loans granted to entrepreneurs affected by the consequences of COVID-19 and on simplified proceedings for approval of the arrangement in connection with the occurrence of COVID-19, i.e. from 24 June 2020 to 6 weeks from the date of cessation of the state of epidemic threat or the state of epidemics. Thus, this term does not include the adoption of resolutions by the general meeting in writing or by means of direct remote communication.

In the opinion expressed by the Revision Association it was also pointed out that “if the first general meeting is convened within the deadline referred to in Article 90, the term of office of statutory bodies shall expire on the date of holding this general meeting, and consequently, members of the governing bodies of a new term of office should be elected at this general meeting.” The above regulation does not limit housing cooperatives in convening general meetings in a stationary format if the sanitary regime regulations concerning e.g. the limit of persons during meetings allow for it. To sum up, when convening a general meeting during an epidemic, one should remember to appoint members of the supervisory board if the statute binds the expiry of their term of office to holding a general meeting.  

The provisions of the new public procurement law, in force since 1 January 2021, introduced a number of modifications to the institution of the design contest, aimed at improving it and making it more widely used by contracting authorities.  The essence of the design contest remained unchanged. It is worth recalling that in accordance with the statutory definition, a design contest is a special form of a public promise, in which the contracting authority, by means of a public announcement, promises a reward for the execution and transfer of the right to the design contest work selected by the jury. It is important to note that a design contest is not a public procurement procedure, but a public promise of a prize, which may include, among other things, inviting the author of the work selected in a design contestto negotiate in single source procurement or to negotiate without an announcement.

The contracting authority can organise a design contest in order to select a creative work, concerning in particular spatial planning, urban design, architectural design, architectural and construction design, data processing, IT design, and an innovative project. The presented catalogue is not closed, but it makes it easier to specify the contracts to which the design contest may apply.  A novelty is the addition to the catalogue of “IT design” and “innovative project”.  The most important thing is that the design contest is held in order to select a work of creative character, thus having the character of a work in the understanding of the copyright law, to which the participant who submitted the selected work will transfer the author’s economic rights.

Unlike the previous act, which provided for the optional nature of the design contest, the current regulations introduced the obligatory principle, in a situation where the contracting authority intends to award a contract for architectural design or architectural and construction design services. There are three exceptions to this rule.  There is no obligation to hold a design contest if the contracting authority intends to award a contract for architectural design services or architectural and construction design services that has a negotiated element, i.e. in the form of negotiations with announcement, competitive dialogue, negotiations without announcement or single source procurement. There is also no need to hold a design contest for contracts of this type with values lower than the so-called EU thresholds – here it is worth noting that the value refers to design services, not the planned construction work (as the law stands, depending on the type of contracting authority, it is the equivalent of EUR 139,000 or EUR 214,000, i.e. PLN 593,433 or PLN 913,630). Moreover, a design contest does not have to be held if the subject of the procurement is a linear object within the meaning of the construction law – for example, a road construction project is such a procurement. It does not require creative solutions, and waiving the requirement for a design contest seems fully justified, particularly in the context of the length of potential proceedings. 

The award in a design contest is obligatory. It is a pecuniary or material prize awarded to the author(s) of the selected entries, or an invitation to the author(s) of the selected entries to negotiations with a view to providing a service based on the selected entry, or such an invitation along with a pecuniary or material prize. Under the previous act, the reward in the form of an invitation to negotiations could only lead to the detailed elaboration of a design contest entry, so the introduced change should protect against a situation in which the execution of a design services contract would be performed by an entity other than the winner of the design contest.

Another novelty introduced are two types of design contest procedures: an open design contest and a restricted design contest, in which, after verification of the subject of the design contest, only the participants invited to submit entries may submit entries. 

The staged nature of design contests has been retained. In a two-stage design contest, in the first stage, studies complying with the requirements laid down in the design contest regulations are selected. In the second stage, the jury evaluates the entries based on the studies submitted in the first stage, using the criteria specified in the design contest regulations. In a two-stage design contest, the Contracting Authority may also limit the number of participants who will be invited to the second stage of the design contest by applying all or some of the criteria for the evaluation of the entries as specified in the design contest Rules to the study designs.

A very important practical innovation is the possibility of inviting to negotiations, and thus concluding an agreement, with the participant whose entry received the second highest score. Such possibility can be provided for in the Rules and Regulations of the design contest in the event that negotiations conducted in the mode of single source procurement with the author of the selected entry do not lead to the conclusion of a public procurement agreement.

The provisions of the new act also introduced the limitation of the publicity of those design contest entries or stage studies, which were not awarded.

The above principles are the basic rules according to which a design contest should be conducted. Moreover, just as under the previous regulations, the contracting authority organizes the design contest on the basis of the rules and regulations, which contain detailed principles of the design contest, including the rights and obligations of the design contest participants. The provisions of the regulations are binding not only for the design contest participants, but also for the contracting authority, which has limited possibilities of making changes.  The act indicates the minimum scope of the regulations, which includes a description of the subject of the design contest, the detailed procedure of the design contest, requirements for participants, the composition of the jury, and legal protection measures.  A thorough familiarisation with the regulations is crucial for any possible participation in the design contest procedure. Also from the contracting authority’s point of view, it is extremely important to properly prepare the regulations, so that they meet the requirements of the Act and do not leave any doubts in the interpretation of their provisions. It is worth mentioning that, among other things, the recommendations of the president of the Public Procurement Office are prepared for this purpose with the participation of entities bringing together entrepreneurs active in the field of construction and architecture. This document, once established, may constitute useful guidelines for the ordering parties and interpretative guidelines for the participants. Draft available here:   https://www.uzp.gov.pl/strona-glowna/slider-aktualnosci/konkurs-po-nowemu-konsultacje-projektu-rekomendacji/konkurs-po-nowemu-konsultacje-projektu-rekomendacji.

It is worth reminding that the jury, which makes the evaluations, consists of at least three persons appointed by the contracting authority, whodo not have to be its employees, should have the knowledge and experience to evaluate the submitted entries, and if specific provisions require that they have the qualifications to develop a design contest entry, at least 1/3 of the jury members, including the chairman, should have the required qualifications.  

It should also be remembered that there are legal remedies in contests, which should be specified in the rules of procedure. The legal remedies are available to design contest participants, if they have or had an interest in obtaining a prize in a design contest and suffered or may suffer a loss as a result of an infringement of the Act by the ordering party.

To sum up, the changes introduced by the new public procurement law are not only cosmetic and systematic. It seems that conclusions have been drawn from the design contests held and the problems that have arisen there. Moreover, by making design contests obligatory to a certain extent, the legislator aims to increase their role, which is already visible in the practice of awarding contracts, particularly for architectural services.   

The vast majority of entrepreneurs operating in Poland, especially from the SME sector, encounter the problem of excessively long payment terms. Extending payment terms is a common practice used by contracting parties, whether in construction services, transport or the supply of goods. Ordering parties often use contract templates with payment dates after 90 or 120 days. Often you can also find provisions extending the already long payment date by another month in the event of failure to comply with some minor formalities.

How to deal with such challenges? Since the beginning of 2020, the legislator has made available several tools that may be helpful. One of the amended regulations contained in the Act of March 8, 2013 on counteracting excessive delays in commercial transactions (ie Journal of Laws of 2021, item 424) is Art. 7 sec. 2a, which indicates that “The payment deadline specified in the contract may not exceed 60 days, counted from the date of delivery of the invoice or bill to the debtor, confirming the delivery of goods or the performance of a service, unless the parties expressly agree otherwise in the contract and provided that is not grossly unfair to the creditor, with the exception of paragraph 2a “. Wherein paragraph 2a applies to transactions where the debtor of the micro, small or medium-sized entrepreneur is a large entrepreneur. In such a situation, a large entrepreneur cannot set a payment period longer than 60 days. How to assess whether a contract clause is not grossly unfair indicated in Art. 11a of the Act, according to which, when assessing, the entirety of the circumstances of the case should be examined, in particular:

“1) flagrant departures from good commercial practices that violate the principle of good faith and the principle of fairness;

2) the nature of the goods or services that are the subject of the commercial transaction, in particular the time usually needed for the sale of the goods by the debtor to third parties, or

 3) adjusting the schedule for the delivery of goods or performance of the service in parts to the schedule of meeting the corresponding parts of the cash benefit. “

Translating the above general guidelines into the realities of business situation that were conducted by our Law Firm and in which the courts recognized payment terms longer than 60 days as violating the Act and, as a result, ruled that our Law Firm’s clients were entitled to payment after 60 days for the service provided, for example the following particular provisions were considered grossly unfair:

 – “the date of payment of the amount of a single freight set on (…), i.e. more than 3.5 months after the actual performance of the contract by the carrier meant that the carrier credited the defendant’s business activity, who could freely dispose the funds allocated to the payment of remuneration for the carrier during this period, when he had the remuneration paid by the entity ordering the transport ”;

– “the provisions (…) of the order, which authorized the defendant to extend the payment deadline by another 60 days in the case of any complaints or entries in the CMR document, – taking into account the behavior of the defendant who did not report any claims to the claimant related to transport – as gross unfair to the carrier (…) “and ” (…) the contractual provisions extending the payment period were grossly unfair to the creditor, and were contrary to the socio-economic purpose of the contract and the principles of social coexistence, and above all were objectively unjustified, taking into account the type of service and the duration of the contract (only 3 days elapsed between loading and unloading the goods). It should be noted that the approximately 4-month period for the payment of the unit freight amount de facto meant that the plaintiff was crediting the defendant’s business activity ”;

The cited opinions of the courts indicate that if the payment deadline is set for more than 60 days or is extended unilaterally by the debtor, such deadlines may most likely be considered grossly violating the creditor’s interest. In the event of a court dispute, it is the debtor who will have to prove that the special circumstances justified such a long payment period. This issue was also considered by the courts in cases conducted by the Law Firm, and as circumstances justifying the extension of the payment deadline, the courts indicated these might be, for example: “(…)the complexity of the order, the need to produce goods from unique elements as the basis for extending the payment deadline, and thus proving that the extended payment term will in no way infringe the interests of the creditor”.

Following the remarks of the courts presented above, it can be concluded that if the debtor has set a payment term longer than 60 days, it will not be relevant for the maturity of the creditor’s claim in most commonly concluded contracts in business transactions, and only in the case of atypical specific contracts, the deadline longer than 60 days will be justified. As a result, the creditor will be able to demand payment of the due amount already after 60 days from the date of delivery of the invoice or bill, even in the case of a payment deadline exceeding 60 days resulting from the contract between the parties. If the claim becomes due after 60 days, it will mean that the creditor will also be able to claim the lump sum costs of pre-trial debt collection after these 60 days.

The possibility of demanding payment from the debtor of the receivables after the statutory payment deadline and before the contractual deadline may contribute to the improvement of the creditor’s liquidity and avoid crediting contractors at his own expense.

Reasons cited for granting planning authority to the municipalities include the need to ensure consistency in spatial order and to provide the municipality with the possibility to effectively perform their own tasks as assigned by the Act on Municipal Self-Government. For example, when designating areas for housing development in their plans, municipalities take into account the need to provide roads, health care or education for future residents who will occupy the new land designated for development. This is one of the reasons why development restrictions must exist and the owner cannot always develop the property as he/she wishes.

The Act on spatial planning and development, however, requires the municipal council to balance both the public interest and the interest of the property owner.

This provision is indicated right at the beginning of the Act in Article 1. It lists a number of elements that are taken into account in spatial planning and development. These include:

– requirements of spatial order, including urban planning and architecture,

– architectural and landscape values,

– environmental protection requirements, including water management and agricultural and forestry land protection,

– ownership rights,

– public interest needs,

– the need to ensure appropriate quantity and quality of water for the purposes of supplying the population,

and it was indicated that it is necessary precisely to weigh public interest and private interests – without favouring any of those interests.

The legislator also distinguished elements that should be taken into account when locating new development in the plan, these are, in particular

– locating new residential development in a manner that allows residents to make maximum use of public mass transit as their primary means of transportation,

– providing spatial solutions, facilitating the movement of pedestrians and cyclists.

The provision was thus constructed in such a way as to give the municipal council the possibility to influence, among others, the increase or decrease in the number of residents. As it has already been pointed out, it is important for the municipality to provide infrastructure according to the population that resides there.

Often both commercial investors and small owners do not want to accept the designation of their property in the plan and feel hurt because they cannot dispose of their property in any way they want.

In the following articles I will analyze the jurisprudence of administrative courts concerning the limits of planning authority. I will show how differently the courts approach some issues in order to be almost completely unanimous in others. I will also explain when an investor has a chance to obtain a planning provision in line with his wishes, and when such chance is slim.

We will start with the Supreme Administrative Court ruling of 25 November 2020

(ref. II OSK 791/190).  The case concerned a complaint against a local law zoning which changed the existing zoning plan in such a way that for a part of the geodesic area specified in the local law, it was stated that in the absence of a sanitary sewer system, until such a system is built, sewage may be disposed of only to the existing septic tanks. After the complaint was dismissed by the Voivodship Administrative Court, the case was referred to the Supreme Administrative Court. The  SAC, in contrast to the Voivodship Administrative Court, stated that taking into account the justification of the local law, the plan should be interpreted in such a way that it prohibits the construction of septic tanks and “since no suitable facilities exist in this area and at the same time there is no possibility of building new facilities, the applicant was deprived of the possibility to discharge sewage. The applicant’s right to property, under which he has the right to construct the necessary sewage disposal facilities on his property, was thereby restricted.”

It was further pointed out that:

– ‘the municipal council violated the principles for drawing up the local plan by abusing its planning authority, resulting in a restriction of the applicant’s property right,

– the council failed to indicate the circumstances justifying the imposition of a ban on the construction of new sealed septic tanks in the entire area belonging to the applicant in a situation where this area is deprived both of access to the collective sanitary sewage system and of access to the existing sealed septic tanks.

It was also pointed out that “the essence of the operation of the principle of balancing the opposing interests is based on the correct implementation of two elements of this principle: the balancing of interests and the result of the balancing. If the balancing of interests has not taken place or the rule of domination of any of the interests has been unjustifiably adopted – this principle is violated. Therefore, when interfering in the sphere of private interests of the owners, the municipal council should unconditionally follow the principle of proportionality understood as the prohibition of excessive, in relation to the protected values, interference in the sphere of rights and freedoms of individuals”.

The SAC judgment allows us to state that the municipal council, when determining the content of the plan when resolving the conflict of public and private interests, should each time analyze in detail the effect of the violation of each of these interests and justify its position. It should be concluded that in this case the prohibition of construction of new septic tanks was found to be unjustified as it infringed unjustifiably on private interest, moreover, the local law did not indicate justification of such decision and its advisability in terms of public interest.

In most cases, the rules for a transmission companies’ use of land on which devices for the transmission of electricity, water and gas are located, are regulated through establishing transmission easements. According to Art. 305 (2) of the Civil Code, transmission easements are established for an appropriate fee.

Establishment of an easement involves the obligation of the owner to tolerate the existence of electricity, water or gas transmission facilities on his land, but also to receive a benefit in the form of one-off payment (usually) or periodic compensation. Should tax be paid on the remunaration received? Before October 4, 2014, the tax authorities took the position that the remuneration received by the taxpayer for establishing a transmission easement was taxable. This position was confirmed by issued general interpretations (interpretation of the Minister of Finance of July 10, 2013, DD3 / 033/101 / CRS / 13 / RWPD-48186 / RD-70022/1).

In 2014, an amendment to the Personal Income Tax Act entered into force, which determined that  income from remuneration received for the establishment of a transmission easement within the meaning of civil law became free from income tax. Therefore, at present, there should be no doubt, that in accordnace with the aforementioned amendedment, no tax is to be collected on the remuneration received for the establishment of the transmission easement.

When regulating the issue of transmission easement, the property owner and transmission company (in the absence of a consensus of the parties, this is done through the courts) often make mutual settlements with respect to the prior use of the property by the entrepreneur without legal title. On this basis, the owner is entitled to remuneration, for so-called non-contractual use of the property. Importantly, the remuneration due under Articles 224 § 2 and 225 of the Civil Code cannot be regarded as compensation for damage caused to the owner.  Therefore, renumeration is to be regarded exclusivley as payment for the use of owner’s property by the utility holder.  It should go without saying, but does not hurt to mention, that the full legal basis of the ownership for the property subject to the easement needs to be demonstrated prior the negotiation of the easement.

The amount received for non-contractual use of real property constitutes revenue from other sources, as referred to in Art. 10 sec. 1 point 9 in connection with with Art. 20 paragraph 1 on the Personal Income Tax Act, subject to taxation according to the tax scale referred to in Article 27 sec. 1 on the Personal Income Tax Act and should be disclosed in the tax return to be submitted to the competent tax office by 30 April of the fiscal year following the year in which the above-mentioned remuneration was received (e.g. the judgment of the Provincial Administrative Court in Łódź of 07-07-2016, case no. I SA / Łd 487/16; the judgment of the Provincial Administrative Court in Warsaw of 23-10-2014, case no. III SA / Wa 1666/14).

Therefore, revenue obtained as remuneration for non-contractual use of land does not benefit from the tax exemption enjoyed by the payment for the establishment of a transmission easement. The amount received as remuneration for the use of the real property must be subject to taxation according to the general rules, i.e.  the 17% or 32% scale.

According to Art. 60.7 of the Act on Public Finance of August 27, 2009 , public funds constituting non-tax budgetary receivables of a public law nature are included in the income collected by state and local government budgetary units on the basis of separate acts. The zoning fee is such a budgetary receivable.

Let us remind you what a zoning fee is. According to Art. 36.4 of the Act on  Planning and Spacial Development of 27 March 2003 , if in connection with the adoption of the local zoning plan or its amendment, the value of the real property increases and the owner or perpetual usufructuary sells the real property, the head of the commune, mayor or president of the city collects a one-off fee established in this plan, determined as a percentage of the increase in the value of the real property. This fee is the municipality’s own revenue. The  fee may not exceed 30% of the increase in the value of the subject property.

What then happens in the course of the proceedings on imposition of the zoning fee if the party to the proceedings dies?  This issue has in the past been quite a challenge for the authorities. However, it can be concluded that recently the position of administrative courts on this issue has become more uniform.

Therefore, below I indicate three judgments that consistently represent the latest jurisprudence position. Interestingly, this issue has appeared relatively few times  in the jurisprudence of administrative courts.

Thus: in the Judgment of the  Voivodship Administrative Court in Łódź of November 8, 2017 (file reference: II SA / Łd 689/17),  it was indicated (following the resolution of seven judges of the Supreme Administrative Court of December 10, 2009, file ref. II OPS 3/09), that: The complainant did, admittedly, indicate that he had acquired the real estate on the basis of an inheritance division agreement and an agreement of annulment regarding  joint ownership, and that he had acquired the plot in question when the current zoning plan was already in force. In his opinion, in such a situation, the imposition of the zoning fee was unjustified, because the purchase and sale of the plot took place when the same local zoning plan was in force – but as indicated above, the Voivodship l Administrative Court pointed out that the mere fact of acquiring real estate by inheritance does not exempt from the obligation to pay the fee. Only here the party purchased the property before the proceedings for calculation of the fee were initiated.

Unlike in the second case, which we are considering, where the death of the party took place in the course of the fee determination procedure. The judgment indicated that the zoning fee, which was not charged before the testator’s death (despite the fact that the proceedings were pending), cannot be charged (judgment of October 7, 2016 of the Voivodship  Administrative Court in Glwice, file ref. II SA / Gl 272/15).

The third case involves the situation when the zoning fee has already been calculated and the administrative decision conerning this issue becomes final. This is where the  Voivodship Administrative Court in Poznań comes to our aid, which in its judgment of March 14, 2013, file ref.  II SA / Po 60/13, unequivocally ruled that “only the zoning fee concretisedin the final administrative decision may be considered an equivalent to a tax liability, and thus only in the case  when such a decision is issued with respect to the seller of the real property and becomes final during the seller’s lifetime, that the provisions of the Tax Ordinance may apply accordingly to the obligation to pay zoning fee in a certain amount resulting from this decision”.

To sum up:

we calculate the planning fee when: the seller acquired the property by inheritance and then sold it within 5 years from the date of entry into force of the development plan, and also if the death of the party occured after the decision on the zoning fee became final and legally binding – then we charge the heirs with the fee.

However, we cannot charge the fee if the death of the party occurred in the course of the proceedings regarding the determination of the zoning fee but before its completion.