Law on land protection – a textbook example of spoiling the law
On June 25, 2015, the Sejm passed the Law on Formation of the Agricultural System and Amendments to Certain Other Laws, called the “Land Protection Law” by its partisans. Members of all clubs voted in favor of the draft, although its content and the course of the legislative process are far from the standards of good legislation.
The law amended, among other things existing rules for the acquisition and disposal of real estate by the Agricultural Property Agency. Among other things, it introduced a mandatory 10-year ban on the resale of properties acquired from the Agency, a prohibition on mortgaging them, and a number of further restrictions, leading to a freeze in the secondary market for agricultural real estate. First and foremost, however, the law removes the right of priority to purchase real estate from ANR from the former owners of properties seized by the Treasury under the land reform. The bill also envisioned the establishment of an agricultural property registry and the Agency’s forced brokerage of sales, but this was abandoned at the very end.
Since the beginning of the legislative work, the proposed provisions have been strongly criticized in opinions issued by the Office of Studies and Analyses of the Supreme Court, the Attorney General, the National Notary Council and the Office of Parliamentary Analyses. The proposed amendments have been accused of being unconstitutional, mainly due to restrictions that harm the essence of property rights, as well as contradicting EU law by infringing on the free movement of capital. Despite the criticisms, the law retains much of the controversial solutions.
The stringent restrictions on the disposal and use of real estate found in the law indeed appear to violate the constitutionally guaranteed protection of the right to property. The solutions that have been adopted allow the Agricultural Property Agency to have significant control over privately-owned real estate and are a clear step backward in terms of freedom of real estate transactions. In addition, the very mode of passing the law is questionable, where provisions were introduced at the final stage that completely changed the meaning and purpose of the bill.
From the point of view of the law firm’s many clients, the most controversial move is the complete and definitive elimination of the statutory right of priority of acquisition for the heirs of pre-war owners. This entitlement had been in place continuously since 1999 and allowed the buyout of agricultural land belonging to pre-war estates. The heirs of the former owners did not get anything for free, but at least they had the opportunity to acquire farmland located near the palace and park complexes owned by the family. Unfortunately, under the guise of “protecting” Polish land, even this substitute for reprivatization has been eliminated, which will certainly benefit tenants of multi-hectare farms. This is because the lessees have retained the right of first acquisition and have unlimited opportunities to expand their holdings. Depriving landowners of the acquisition priority will certainly be the subject of proceedings before the Constitutional Court, but by then the agricultural real estate market may have undergone irreversible changes.
According to the law firm’s lawyers, however, the stated goal of the law has not been achieved, as it will still be possible for foreign entities to purchase agricultural land.
[UPDATE 1-07-2015]
Mr Przybecki took part in the discussion at 1. Polish Radio Program on the new law. The material can be listened to here.