Open AccessDivision of real estate upon request and the return obligation under Article 136(1) of the Act on the Real Property Management: a few remarks in the context of counteracting the so-called “land freezing” versus the principle of loyalty
Author(s) -
Sławomir Pawłowski
Publication year - 2021
Publication title -
nieruchomości@
Language(s) - English
Resource type - Journals
eISSN - 2719-8030
pISSN - 2657-8247
DOI - 10.5604/01.3001.0014.7462
Subject(s) - expropriation , obligation , premise , law and economics , context (archaeology) , real estate , property (philosophy) , immovable property , business , public property , property rights , real property , phenomenon , estate , subject (documents) , law , economics , political science , finance , computer science , geography , philosophy , linguistics , physics , archaeology , epistemology , quantum mechanics , library science
Division of real estate by application is still not properly recognised in the jurisprudence of administrativecourts. On the one hand, this is manifested in the fact that, although it results in the takeoverof private land for the benefit of a public entity for the purpose of building or extending public roads,this decision is not recognised as being expropriation. One of the most important consequencesof denying to recognise this division as one of the forms of expropriation is that it is not subject tothe return obligation, even if the public-purpose investment project, i.e. the construction of a publicroad, was not completed within 10 years of the takeover. It should be added that the lack of actionson the part of the commune to acquire such land leads to an adverse phenomenon which is referredto as “freezing the land”. On the other hand, it is argued that the division decision has no features ofauthoritative and compulsory acquisition of the title to real property by the commune. The aboveviews are subject to criticism given inter alia that they fail to take into account that the spatialplanning acts, in particular the local spatial development plan, play a prognostic role in relation toexpropriation acts. The study presents the thesis that, were the premise of the public purpose berejected, then regardless of the form of takeover of the title to real property by a public entity, theobligation to return this property to the former owner or its legal successors arises.