From 2022, houses up to 70 sq m. without a building permit and formalities

From 3 January 2022, a house up to 70 sq m. may be built in a simplified procedure with limited formalities and no building permit. What are the pros and cons of such an investment and what exactly a simplified procedure means?

The act on the construction of a house up to 70 sq m. has entered into force

On 29 October 2021, the President of the Republic of Poland signed an amendment to the act which forms a part of the “Polish Deal” project and introduced the possibility of building a house up to 70 sq m. without formalities. From the very beginning, the bill aroused much controversy, as well as voices of resistance, among others from the Polish Chamber of Civil Engineers and the opposition. Nevertheless, it was not subject to any major amendments at the legislative stage and the objections to the bill raised by the Senate were entirely rejected by the Sejm.

Consequently, on 3 January 2022, new regulations allowing the construction of single-family houses up to 70 sq m. without building permit entered into force. The currently effective act applies to detached, no more than two-storey, single-family residential buildings with a built-up area of ​​up to 70 sq m., the impact area of ​​which remains within the plot or plots on which they were designed, and the construction is carried out in order to meet the investor’s own housing needs.

Learn more: Polish Order – Houses up to 70 sq m. without a building permit  

Further we will explain the potential threats and risks those who want to enjoy the right to build a house without formalities or building permit may face, and we will indicate the introduced facilities for future investors that are not visible at first glance.

Who will be responsible for the legality of house construction without building permit?

To date, the responsibility for the legality of house construction rested with the officials. The architectural and construction authority, when issuing a decision regarding building permit, was obliged to check, among other things, the compliance of the development plan of the plot or land and the architectural and construction design with:

• with the local spatial development plan and other acts of local law or decision on building conditions and land development in the absence of a local plan,
• environmental protection requirements, in particular those set out in decision on environmental conditions, referred to in Art. 71 sec. 1 of the Act on providing information on the environment and its protection, public participation in environmental protection and on environmental impact assessments of 3 October 2008,
• resolution determining the localization of a residential investment;

After the new regulations came into force, this state of affairs has changed. Obtaining a building permit for a house up to 70 sq m. is no longer required. Once the investor has declared an intention to build a house without formalities to the competent office, the district governor will not be able to object to such construction. So far, the governor could do so within 21 days from reporting the intention to commence construction works.

While this seems to be a beneficial solution for potential investors, it is associated with transferring responsibility for the legality of the construction onto them. Each person who decides to build a house of up to 70 sq m. will be required to submit a declaration that:

• the planned construction is carried out in order to meet the investor’s own housing needs. Such a declaration will be submitted under the pain of criminal liability for submitting a false statement under Art. 233 § 6 of the Criminal Code; a person submitting the declaration will be obliged to include the following clause in it: “I am aware of the criminal liability for making a false statement.”;

this clause is to replace the instruction of the authority on criminal liability for submitting false statements;

• accepts responsibility for managing the construction if a construction manager has not been appointed,
• the documentation attached to the notification is complete.

In addition, to the notification of the construction supervision authority about the intended date of commencing construction works, the investor will have to attach information indicating the names and surnames of persons who will perform the function of the construction manager – if the construction manager is appointed.

If a construction manager is not appointed, the investor will be obliged to place an information board in a visible place on the construction site and a notice containing data on work safety and health protection.

In addition, an investor will be obliged to ensure compliance with the regulations regarding the possibility of development or technical conditions. As one can easily guess, building a house from scratch involves many technical, architectural, legal and construction issues that require specialist knowledge and are not generally known. Therefore, it is important that everyone who decides to benefit from the discussed act, thoroughly thinks over the future investment and gets familiar with information on the construction of houses without formalities and with possible statutory and technical requirements, for the fulfilment of which they will be responsible.

Although the act clearly indicates that building a house without formalities can be carried out without a construction manager, it is still worth considering whether using their services, in order to minimize the risk of a mistake (despite additional costs) will not be more profitable and certainly safer for the future investment than to supervise the construction site by yourself.

House design and designer’s objection versus simplified procedure

The fact that you are not required to obtain a building permit does not mean that you will not need to prepare a construction design for the building. Such an obligation still exists, and only with regard to the development plan of the plot or land, in the case of such buildings, the law allows the design to be prepared by a person having construction qualifications to design:

• in the architectural specialty, or
• construction and building specialty, authorizing to prepare designs in the field of architectural solutions.

Moreover, the new solutions do not deprive the designer of the possibility to object or express reservations regarding the works carried out in the implementation of this type of buildings. However, the procedure for objecting and expressing reservations has changed.

So far, a designer had the right to enter the construction site and make entries in the construction logbook regarding the progress of construction, as well as request the suspension of construction works:

• in the event of identifying a possible threat,
• if the construction works were not performed in accordance with the design.

Because the obligation to keep a construction log no longer exists, the designer’s right to demand the suspension of construction works will be implemented by notifying the competent construction supervision authority.

Absence of local spatial development plan

In the absence of a local spatial development plan, the construction of a house without formalities is subject to prior obtaining of a planning permit. Due to a simplified procedure of building a house up to 70 sq m., the lawmakers also facilitated the procedure for obtaining a planning permit with regard to such investments.

In the table below, we indicate how the time given to public authorities for dealing with the formalities necessary to issue a planning permit has been shortened:

As indicated above, the waiting time for the issuance of a planning permit for houses up to 70 sq m. was shortened by almost three months. Failure to comply with the above deadlines may result in sanctions in the form of financial penalties for each day of delay.

Post-construction formalities

Upon completion of the construction, the investor must notify the construction supervision authority that the construction has been completed. If the construction manager has not been appointed, the investor will be obliged to submit a declaration about:

• measuring the usable floor area of ​​the building and individual residential premises in a manner consistent with the following regulations:
  • regulation on detailed scope and form of a construction design,
  • regulation on determination of geotechnical conditions for the foundation of buildings
• compliance of the building with the construction design and technical and construction regulations

It should be remembered that submitting a false statement has been classified as an offense punishable by a fine.

Additionally, upon receipt of the notification of completion of the construction works, the supervision authority has the right to inspect the facility and check the reliability of the measurements and works performed. In the event of any objections, the authority may submit them within 14 days in the form of a decision, what will be tantamount to no consent to occupy the building.

That is not all, or the question of criminal liability 

For a false statement, the investor is exposed to criminal liability of even up to 5 years imprisonment. Such a penalty may apply, for example, in a situation where the investor submits a declaration that the house being built is only for their own use and the house has been sold during the construction, contrary to previous assurances.

Expansion under a question mark

The provisions of the act refer only to the possibility of building houses with an area of ​​up to 70 sq m. and does not contain any specific regulations as to the possibility of house expansion at a later date. The absence of such specific rules means that general rules will apply, so if you want to expand your home you will have to go through the entire standard procedure.

See also: Public contracts – key changes from 2022

Transitional provisions

The so far existing provisions will apply to persons who:

• have already started building a house with a built-up area of ​​no more than 70 sq m.,
• have already obtained a permit to build a house of a similar size, or
• have already reported such a house to the architectural and construction authority

and who would have been subject to the amended act.

In summary, building a house up to 70 sq m. is associated with certain risks. If there are any deficiencies in the construction, the investor will be personally responsible for them. Therefore, when you decide to build a house without appointing a construction manager, which of course may be much cheaper, a more prudent approach would be advisable.

Author:

Michał Hutny
Attorney-at-law trainee, Junior associate
Economic Law and Real Estate Department, TGC Corporate Lawyers

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