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(ostatnia aktualizacja tekstu: 2004-06-25 15:27:46)
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Matters related to the purchase of real estate by foreigners are governed by the law of 24 March 1920 on the Purchase of Real Estate by Foreigners, as amended.
Within the meaning of the law referred to above, a foreigner is:
* a natural person who is not a holder of Polish citizenship,
* a legal entity having a registered office abroad,
* a partnership of persons or entities referred to above, without legal personality, having a registered office abroad, established under foreign law,
* a legal entity or a commercial company, without legal personality, having a registered office in the territory of Poland, in which a controlling stake is directly or indirectly held by persons, entities or partnerships referred to above.
The general principle is that the purchase of real estate by foreigners requires permission from the Minister of the Internal Affairs and Administration.
A. When is permission required?
A permit is required for each real estate purchased, that is each time the title to or the right of perpetual (99-year) lease of real estate is acquired by act of law.
The following transactions require permission:
* the purchase of real estate,
* the purchase or taking up of shares in a company having a registered office in the territory of Poland and holding title to or the right of perpetual lease of real estate.
A permit must be obtained if the purchase by a foreigner of shares in a company holding title to or the right of perpetual lease of real estate results in taking over control of such company, or, in the case of a company which already controlled, if its shares are purchased or subscribed for by a foreigner who is not the company�s shareholder or partner. In the case of a commercial company, a controlled company means a company in which one or more foreigners hold a dominant position.
Upon an application filed by a company, the Minister of the Internal Affairs and Administration grants a permit for foreigners to purchase or subscribe for shares in such company, unless such purchase or subscription would pose a threat to national security or defence or to public order, or would be contradictory to national interests.
The provisions of law do not apply to company transformation and acquisition of real estate by way of in testate succession.
No legal steps may be taken or entry made in appropriate registers of title to or the right of perpetual lease of real estate, without a permit from the Minister of the Internal Affairs and Administration. Where a permit is granted on certain specific conditions, official documents must be submitted as evidence that such conditions have been met.
Purchase of real estate or shares by a foreigner is invalid if the provisions of the law in question are not observed.
B. Permission for EU entrepreneur's.
The Law of 24 March 2001 on the Purchase of Real Estate by Foreigners introduces a distinction between the entrepreneurs originating from the European Union and entrepreneurs from other countries. A permit is granted if:
* applied for by an EU entrepreneur ,
* an EU entrepreneur's enterprise or branch office is established in the territory of Poland,
* purchase of real estate is a prerequisite for conducting out business activities of that enterprise or branch office,
* no circumstances justifying the refusal of a permit on the grounds of social policy or concerns for public safety or health are in existence ,
* purchase does not concern natural resources nor agricultural or forest land.
The Minister of the Internal Affairs and Administration may refuse permission on the grounds of social policy or concerns for public health or safety.
C. Issuance of permits
Permits are issued by the Director of the Department of Permits and Licences (Departament Zezwoleń i Koncesji) at the Ministry of the Internal Affairs and Administration, acting on authorisation from the Minister of the Internal Affairs and Administration. A permit is issued in the form of an administrative decision further to the application filed by a foreigner. The provisions of the Administrative Procedure Code apply to the proceedings related to the purchase of real estate.
The application should contain, among others, the particulars of the purchaser (first name and surname, business name, registered office of the person authorised to represent the purchaser, detailed address), a detailed description of the real estate, the particulars of the seller, the legal basis for purchase, and the intended purpose of utilisation of the real estate.
The application should be made in Polish and a sworn translator should translate any annexes in foreign languages into Polish.
The extract from the Land and Mortgage Register (księga wieczysta) and from the Land and Buildings Register (ewidencja gruntów i budynków), as well as the seller's statement of his or her intention to sell the real estate should be attached to the application.
In order to obtain a permit, a legal entity must be licensed to conduct business in Poland. Therefore, in practice, all commercial companies registered in Poland qualify for a permit It is the accepted practice of the Ministry of the Internal Affairs and Administration to refuse the granting of permits to legal entities registered abroad.
The Minister of the Internal Affairs and Administration has two months to examine the application. A permit does not impose an obligation on the seller to sell the real estate in question; it simply provides the premise upon which the real estate may be purchases. The purchase of real estate is effected in the form of a notarial deed.
A permit is valid for one year. A binding purchase agreement should be made and executed within that time limit.
A foreigner wishing to purchase real estate may seek a permit issuance promise (promesa). The application for such promise, and the annexes, must comply with all formal and legal requirements that apply to the application for a permit to purchase real estate.
A promise is valid for six months. It may also be issued on the application of the partners of a controlled company. As long as it is valid granting a permit cannot be refused unless there has been a change in the circumstances of the matter under review. A promise constitutes an obligation to issue a permit unless there has been a change in the circumstances of the matter under review. A promise sets out the conditions to be met by a foreigner prior to seeking a permit . When a promise is in place, the Minister of the Internal Affairs and Administration cannot refuse to grant a permit unless there has been a change in the circumstances of the matter under review.
D. Exemptions from the obligation to obtain a permit
* purchase of lots not larger than 0.4 hectares in urban areas, by a controlled legal entity for statutory purposes,
* purchase of separate apartments,
* purchase of real estate by a foreigner living in Poland for at least five years from the date of obtaining a permanent residency card,
* purchase, by a foreigner married to a Polish citizen and living in Poland for at least two years from the date of obtaining a permanent residency card, of real estate which will constitute the joint statutory property of man and wife,
* purchase of real estate by a foreigner when on the day of transaction he or she is the in testate successor to the real estate seller, provided that the seller has been the owner or perpetual usufructuary of the real estate for at least five years,
* purchase of real estate by a foreign entity which is a bank and, at the same time, mortgagee by way of taking over property as a consequence of ineffective sale under execution proceedings,
* purchase or taking up by a directly or indirectly controlled bank of shares in a company registered in Poland and holding title to or the right of perpetual lease of real estate, in connection with enforcing a claim arising from the performed banking services.
Exemption from the obligation to obtain a permit does not apply to real estate located in the border zones and agricultural land of an area of over 1 hectare.
Text source: Polska Agencja Informacji i Inwestycji Zagranicznych (PAIiIZ) |
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