Building underground car parks has become a very popular solution, especially in urban areas. From the legal perspective, a car park may be subject to separate ownership of premises or constitute shared property – the choice being up to the investor. However, in order to distinct the ownership of a car park unit, it is necessary to obtain a certificate of its independence.
In accordance with Article 2 section 2 of the Act on Ownership of Premises, an independent residential unit is a room or a group of rooms intended for permanent residence of people, separated by permanent walls within a building, which together with auxiliary rooms serve to satisfy their residential needs. This provision shall also apply, mutatis mutandis, to independent units used for non-residential purposes. The fulfilment of the condition of independence shall be confirmed by the Starosta in the form of a certificate.
Administrative authorities have recently been increasingly refusing to confirm the independence of garage premises. Thus, investors are being surprised by such refusal already after completing an investment, which has grave consequences, for example with regard to the investor’s obligations under agreements concluded with customers providing for the sale of shares in the shared ownership of garage premises. Execution of the investor’s obligation is impossible since the condition for the establishment of the premises in the form of issuing a certificate of independence of the premises is not met.
Refusal to recognize the independence of the premises may in some cases be considered justified. In particular, it is not possible to consider independent premises if they would functionally constitute an integral part of another premises and the use of the premises would necessitate the use of rooms located in the other premises. Independence should also be characterized by the fact that the owner and other persons using the premises have unrestricted access to them (judgment of the Supreme Administrative Court dated January 29, 2020 (II OSK 3777/18) and March 17, 2020 (II OSK 602/19)).
However, in connection with unrestricted access to the premises, there is a reservation that only owners and users of the premises are to be their exclusive users. Authorities argue that the attribute of independence of the premises cannot be granted to a space to which third parties also have access. Such a situation occurs in the case of underground car parks, where there are technical rooms which are part of shared property (i.e. electric rooms, water and sewage systems, heat distribution centres and ventilation chambers). Access to these premises is through the car park, and persons who use them are not only those entitled to parking spaces, but also third parties (e.g. members of technical teams). This approach is supported by, among others, the judgment of the Supreme Administrative Court dated November 21, 2019 (I OSK 825/18).
However, the above approach may be argued against.
The entire building area has a number of spaces which are classified as shared property. These spaces do not remain completely separated from the premises, regardless of whether they are located in an underground car park or on other floors. The fact that there are rooms within the car park intended for servicing the building does not mean that the whole of this space should automatically constitute shared property, on the grounds that it is not acceptable for independent premises to form part of shared property. It should be considered whether these two categories should not be treated independently.
Under Article 13 section 2 of the Act on Ownership of Premises, the owner of premises, at the request of the management board, is obliged to grant access to the premises whenever it is necessary in order to carry out maintenance, renovation or repairs of shared property, as well as to equip the building, its parts or other premises with additional installations. The quoted provision allows for the possibility of installing elements of shared property within the premises, which does not automatically constitute grounds for refusing to determine their independence. In such circumstances, independent premises are not included as part of shared property, but remain independent. In this case it is considered of secondary independence that access to the shared property is executed through residential premises.
The residential property does not cease to be independent simply on the grounds that it is used for the purpose of using spaces which are part of shared property.
Paweł Panek
Prawnik | Lawyer
T: +48 22 447 43 00
E: panek@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.