ZGODA ORGANU ADMINISTRACJI PUBLICZNEJ W OBROCIE NIERUCHOMOŚCIAMI
THE CONSENT OF THE PUBLIC ADMINISTRATIVE AUTHORITIES ON TRANSFERING REAL PROPERTY

Summary/Abstract: Polish public law, in its provisions relating to real estates transfer, requires consent of the competent public administrative authority to transfer certain type of real estates. The requirement to obtain such a consent is an exception to the rule that the transfer of the real property can be effected upon the contract executed in the form of the notarial deed, concluded between the proprietor and the purchaser, exclusively by the force of their autonomous decisions. Either the legal nature of the consent to transfer certain real properties, which is to be obtained from the administrative authority, or the impact of the lack of such a consent to the effectiveness of the transfer of the real estate, may be construed differently. It depends on the wording of the provisions of the particular public statutes which require the consent to be obtained. Some of the statutes state directly that the consent is required for the validity of the transfer of the particular real property, others do not say anything about the results of the lack of such consent. The other statutes include provisions, which require the consent on pain of nullity to the transfer of the property, but this pain of nullity was implemented to these statutes later than the requirement of the consent to be obtained itself. Where the provisions of the particular statutes do not answer what is the impact of the lack of the consent to transfer certain real estates, one may question, whether such a transfer is null and void as contrary to the law or whether it is only ineffective what means that it can be confirmed with the backward legal effect by the public administrative authority. The first position is more strict to the provisions of law which says that the legal acts, in particular the contracts, contrary to law are null and void and they cannot be confirmed or cured in any other way; as the transfer of the real property effected without the consent is being recognized as contrary to the law, consequently, on the basis of the art. 58 of the Polish Civil Code it is null and void. This position treating all consents of the public authorities as having the same legal character seems to be presented by the majority of the civil law doctrine. The second position is based upon the assumption that different consents of the public administrative authorities on transfer of the property may have different legal character, and cannot be regarded as the imperative requirement only. As some of the consents to be obtained form the administrative authorities are very similar to the consents required by the civil law in some of the cases where the third party’s consent is required to effect the legal acts, one may question whether it is possible to use art. 63 of the Civil Code per analogiam to the administrative consents to transfer the property. This article shows that the second position is also justified on the grounds of the Polish law and sufficient from the practical point of view.

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