Buyout of “residuals” – what about properties that lost their socio-economic usefulness after subdivision due to the ZRID decision?

The so-called residual is a property which, as a result of the division and takeover of the property by the State Treasury on the day on which the ZRID decision (permission to implement a road investment) became final, remained in the hands of the previous owner and is not suitable for use for the previous purposes.

The premise of this claim is the existence of a cause-and-effect relationship between the expropriation of part of the property and the loss of the usability of the remaining part for proper use in accordance with its previous purpose. The owner, filing a claim, should therefore demonstrate that the property, as a result of the division made by the ZRID decision, has lost its socio-economic usability.

The phrase “previous purposes” refers to making the remaining part of the property use that corresponds to the previous assumption. Determining these purposes is done by analyzing the use of the property before the division and acquisition of part of it and the possibility of continuing this purpose. This is about the actual use of the property by the owner, even if the method of achieving the previous purposes is changed.

Following the Court of Appeal in Katowice – judgment of 5 November 2020, reference number IAca 857/19, it should be stated that for the assessment of the validity of the owner’s claims, the circumstances relating to the possibility or lack of possibility of conducting business activity on the remaining part of the property, where such activity has not been conducted so far, are irrelevant.

As indicated by the Supreme Court in its judgment of 26 May 2021, reference number V CSKP 79/21, the deterioration of the conditions of use of real estate, which is not caused by the expropriation of part of the real estate, cannot be considered as a basis for a request to acquire the real estate.

The premise for the claim of the owner of the real estate to acquire the part of that real estate that was not expropriated for road construction purposes is therefore the sole impossibility of properly using it for the previous purposes, which is a consequence of separating the expropriated part from it (resolution of the Supreme Court of 11 September 2013, III CZP 35/13).

By establishing the right of the owner to apply for the purchase of the part of the property remaining after expropriation in art. 13 sec. 3 of the Act on special principles for the preparation and implementation of investments in the field of public roads, the legislator satisfies the protection of the rights of the owner.

According to the Supreme Court (resolution of 11 September 2013, file reference III CZP 35/13), deprivation of ownership of real estate, justified by the implementation of a socially desirable goal, should, as a rule, be limited to its necessary part. The takeover of the entire real estate was dictated by the protection of the owner’s interest and is an exception to the rule, which should be strictly defined and interpreted.

The relevant road administrator, which will most often be the General Directorate for National Roads and Motorways, is obliged to acquire, at the request of the owner or perpetual user of the part of the property in question, in the event of the occurrence of the premise, on behalf of and for the benefit of the State Treasury or a local government unit.

The request to acquire part of the real estate not subject to expropriation for the construction of a national road is of a civil law nature.