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Discretionary listing of property in the municipal record of monuments ruled unconstitutional – landmark ruling of the Constitutional Tribunal

On 11 May, 2023, the Constitutional Tribunal issued a judgment(case P 12/18), finding Article 22(5)(3) of the Act of 23 July, 2003, on the Protection and Care of Historical Monuments to be unconstitutional insofar as it restricts ownership title by allowing a property to be listed in the municipal record of monuments, without providing the owner with a guarantee of legal protection against such restriction. The judgment was issued as a result of a request for a preliminary ruling referred by the Supreme Administrative Court.

Under that Article 22(5)(3), the head of the municipality (city or town mayor), acting with the voivodeship monument conservation officer, is authorized to arbitrarily list a property in the municipal record of monuments. However, the owners (perpetual usufructuaries) of the property do not have any legal recourse. Consequently, they may only challenge the sole fact that the property is listed in the municipal record of monuments, but they cannot effectively prevent it.

The Constitutional Tribunal’s judgment does not mean that the institution of the municipal record of monuments ceases to exist, or that the properties listed in it are to be automatically removed from it. The Constitutional Tribunal’s ruling prevents executive bodies from placing properties in the record on a discretionary basis under the article in question. In other words, until legislation is passed providing protective measures for owners (perpetual usufructuaries) of property, it will not be possible to list property in the municipal record of monuments based on an arbitrary decision of the authorities.

However, a property may be deregistered from a municipal record of monuments as a result of an administrative court ruling declaring the entry ineffective. The judgment of the Constitutional Tribunal allowed the Supreme Administrative Court to resume proceedings that had been suspended for years, initiated by complaints of owners (perpetual usufructuaries) against an order listing a property inthe municipal record of monuments. For example, over the last month, buildings such as the Relax cinema at Złota 8 in Warsaw, the former censorship building at Mysia 3 in Warsaw, the villa at Pogonowskiego 10 in Warsaw, and the villa at Wincentego Pola 2a in Szczecin had been excluded from protection due to being listed in the municipal record of monuments (judgments of the Supreme Administrative Court of 18 October 2023, ( II OSK 2781/17, II OSK 2326/18, II OSK 3029/18). More cases in which the legitimacy of entry of a property into the municipal record of monuments is questioned, including cases concerning buildings of unquestionable historical and architectural value, will undoubtfully soon return to court agendas.

However, the situation is different in the case of properties listed in the municipal record of monuments, where the entry has not been challenged by their owners (perpetual usufructuaries) through court-administrative proceedings. Such properties will, as a rule, continue to be listed in the municipal record of monuments.

Consequences of issuance of an order entering a property in the municipal record of monuments

The above-mentioned Article 22(5)(3), which provides the basis for issuance of arbitrary orders entering a property into the municipal record of monuments, was introduced in an amendment dated 18 March, 2010, to the Act of 23 July, 2003, on the Protection and Care of Historical Monuments. According to case-law, the municipal record of monuments is an innominate legal form of monument protection, allowing public authorities to take authoritative actions with respect to a property listed in that record, with significant consequences for the owner.

If a property is listed in the municipal record of monuments, any related actions require the consent of the conservation authority. For example, when issuing a building permit (including a permit for extension or reconstruction) or permit for demolition of a property entered in the municipal record of monuments, the issuing authority has to consult the voivodeship conservation officer on the wording of the decision.

At the same time, unlike in the case of a property covered by a different form of legal protection provided for in the act (e.g., the register of historic monuments), inclusion of a property in the municipal record of monuments does not generate any benefits for the owner. For example, the owner of such a property is not entitled to accrue any subsidies for conservation or restoration works, discounts on the sale of the property, reductions in the fee due for transformation of the perpetual usufruct right into ownership title, tax reliefs, etc. Placing a property under the supervision of a conservation officer may also reduce its market value – however, the owner is not entitled to claim any compensation from the municipality or to request that the municipality repurchase the property.

The extent of the unconstitutionality of Article 22(5(3)

The Constitutional Tribunal declared the said provision unconstitutional to the extent in which it limits ownership title – indeed, failure to provide the owner with a guarantee of legal protection against entry of a property into the municipal record of monuments is such a limitation.

The issuance of an order entering a property into the municipal record of monuments, unlike rulings issued based on the Administrative Procedure Code, is not preceded by any inquiry or evidentiary proceedings. Therefore, the owner is not able to effectively challenge the action of the executive body when a property is listed in the municipal record of monuments.

This possibility arises when the property is listed in the municipal record of monuments – then the owner can defend their rights in proceedings before an administrative court, requesting examination of the legality of the order, as an act of public administration being subject to judicial review.

However, there are no clear and explicit guidelines justifying the entry of a given property into the municipal record of monuments, or formalized rules of communication in this respect between the executive body and the conservation officer. This causes controversy regarding the examination of the legality of the order. Thus, executive bodies have been given the option of designating a property a property of historic value on a discretionary basis, without the need for this to be determined in an appropriate expert opinion or examination.

Consequences of the Constitutional Tribunal’s judgment

The issuance of the judgment by the Constitutional Tribunal does not cause the institution of the municipal record of monuments to be abolished, or cause that the entries made pursuant to the provision in question, Article 22(5)(3), are to be automatically removed from it. The Constitutional Tribunal merely pointed out that the law as it stands currently is unconstitutional, at the same time requiring the legislature to undertake amendments to cure the defects and gaps in the law.

In fact, this means that until regulations ensuring appropriate legal protection measures for the owners (perpetual usufructuaries) of properties are adopted, no property can be effectively placed in the municipal record of monuments based on this article.

Properties that have been entered into the municipal record of monuments based on the above-mentioned provision before it was found unconstitutional, and whose owners (perpetual usufructuaries) did not question the decision on this subject, will remain in the record.

On the other hand, properties being the subject of cases pending before the administrative courts and the Supreme Administrative Court will most likely be exempt from protection provided by the municipal record of monuments. In judgments issued after the publication of the ruling of the Constitutional Tribunal, the Supreme Administrative Court stated that the appealed orders entering a property into the municipal record of monuments are not eliminated – nevertheless, these actions are ineffective and therefore do not have legal effect from the date of their implementation.

However, not all of the properties for which entries in the municipal record of monuments have been ruled ineffective will be completely deprived of legal protection. Many properties in the municipal record of monuments are simultaneously entered in the register of monuments and in the voivodship monument register. Moreover, there may be additional restrictions on the development of a given property in the local zoning plan, the zoning decision, or the decision on location of a public utility project.

Summary

The direction of changes determined by the above-cited judgments of the Constitutional Tribunal and the Supreme Administrative Court, aimed at protecting the rights of owners of properties entered in the municipal record of monuments in an arbitrary and discretionary manner, is in principle recognized as right and justified. At the same time, a property may be deregistered from the municipal record of monuments as a result of an administrative court ruling declaring the entry ineffective. This means that if the entry order has not been challenged within the required deadline, and thus the administrative court proceedings have not been effectively initiated, the property will remain in the municipal record of monuments.

Nevertheless, in the event of a successful appeal against an order of entry into the municipal record of monuments, such orders will most likely be declared ineffective. There is no doubt that the subsequent rulings will also concern properties of unique artistic, historical or scientific value, not covered by any other form of historic monument protection. Thus, unless voivodship conservation officers take action to list properties in the register of monuments or the voivodship monument register ex officio, there is a risk that they will be rebuilt, destroyed, or even demolished. Determining a property’s entry into the municipal record of monuments as ineffective, where equally no other form of legal protection is provided for the property, will allow investors to conduct construction and groundworks without the conservation officer intervening.