The government is taking over pseudo-hotels. New rules for communities and developers [ANALIZA]

The amendment is intended to ensure that voting does not drag on indefinitely and there will be no decision-making paralysis. Currently, as a rule, the community must adopt a resolution absolute majority of votes counted by the number of shares. To put it simply, more than 50 percent must be in favour. votes counted by the size of shares, abstaining votes also count.

According to the project, the current rule will continue to apply to voting at a traditional meeting. But in the circulation procedure, a simple majority of votes, counted according to the number of shares, is sufficient, with abstentions being irrelevant. You will be able to vote electronically, e.g. by e-mail. It will also be minimal two-week deadline for voting and a maximum period of two months.

In practice, resolutions, e.g. approving the annual report or granting a vote of approval, are rarely adopted during the meeting itself. Most often, it is necessary to conduct additional circulation voting, which – given the requirement to obtain an absolute majority of shares – can be long and problematic. — The amendment may speed up the processing of resolutions and reduce the risk of decision-making deadlock – says attorney Łukasz Ciskowski, partner at the Czupajło Ciskowski & Partnerzy law firm.

Minimum shares with the right to call a meeting

The amendment also gives the right to owners of premises holding at least 1/10 of the shares to convene a community meeting at their request in a situation where the management board/manager responsible for this purpose has not taken appropriate steps in this regard. — This solution is currently missing in the act, it has been developed in court practice and it is very good that it will be reflected in the regulations. It is a valid confirmation of the current practice resulting from case law – explains the attorney.

See also: New regulations for plot owners. “A timely decision is better than no decision at all”

A building with defects? It will be easier to fight for their removal

According to the project, a housing community will have legal capacity and own property, which includes rights and obligations related to the management of common property, and above all will be entitled to pursue claims related to non-warranty matters.

According to Łukasz Ciskowski, this change, although it looks innocent, is one of the most important. Why?

Firstly, it rightly confirms the existing jurisprudence of the Supreme Court on the scope of legal capacity of housing communities, limiting it to the rights and obligations related to the management of common property. Secondly, it allows independent action by the community in the field of warranty claims for defects in common property, the pursuit of which was currently subject to a lot of formalities, including the adoption of resolutions and the acquisition of claims from owners by way of assignment.

Mec. However, Ciskowski sees some practical doubts. — They concern the limitation of the community's rights only to claims for defect removal, and only under the warranty for real estate defects. This excludes monetary claims that are more often formulated in practice (because communities prefer to ensure repairs themselves), as well as claims based on other legal bases, including claims for damages – explains an attorney at the Czupajło Ciskowski & Partners law firm.

In his opinion, the amendment should not introduce restrictions, because communities will not be able to give up the existing formalities, and the simplification will be apparent.

Will it be easier to manage the community?

The project also introduces definition of ordinary management. It covers current matters related to the ordinary operation of the common property and maintaining it in a non-deteriorated condition within its intended purpose. Everything that does not fall within these limits falls within the scope of ordinary management.

Currently, there is no such definition, and as a result, many disputes come to the courts about what the management board can do without a resolution of the community. According to attorney Ciskowski, the proposed definition is the weakest point of the amendment, because ndoes not introduce real assistance in the interpretation of ordinary management activities,

— This may result in deepening the frequent decision-making paralysis in housing communities. The more issues that fall outside the proposed definition, the more that will be voted on by owners. Currently, property managers are faced with the passivity of owners when voting on resolutions, and an increase in their number may result in problems in everyday functioning. – says the lawyer.

In his opinion, the existing doubts regarding the qualifications of individual activities will still remain unresolved. For example, a question that often arises in practice is whether concluding an agreement on the administration of common property is an act of ordinary management.

— On the one hand, the administrator will be appointed only to carry out ordinary management activities, but on the other hand, the contract generates significant financial obligations for the community. The definition proposed in the amendment will in no way help resolve such doubts, says attorney Ciskowski.

Therefore, in his opinion, a better direction would be to update the catalog of activities that go beyond ordinary management, which would give management boards and managers real support in the everyday management of housing communities. – Including a specific activity in this catalog would eliminate doubts – he emphasizes.

Payments only until the 10th of each month

The amendment also provides for several specific changes for owners. Firstly, it requires that utility advances be paid by the 10th of each month.

Currently, the provision only covers advance payments for the costs of managing common property, and now it also includes other typical fees for the housing community, i.e. advance payments for utilities and fees for municipal waste.

— Therefore, the date itself remains unchanged, because previously the act also indicated the tenth day of the month. This is another confirmation of current practice, which should be assessed positively – explains Łukasz Ciskowski.

Advance payments for renovations

The project also introduces the possibility of increasing the amount of the advance payment to cover the costs of maintaining the common property. In a word, it will be possible to differentiate advance payments to the renovation fund. If an owner generates additional costs, the community will be able to increase the advance payment by adopting an appropriate resolution.

Currently, this option is only available for commercial premises. In the case of residential premises, expenses and burdens related to the maintenance of the common property are incurred in proportion to the shares held.

— The current rule is intended to protect residents against unjustified increases and disproportions in the amount of advance payments, explains attorney Ciskowski. He is afraid that despite the understandable intention of the legislator, the proposed provision may be abused by communities and will result in numerous court disputes.

– Instead of an absolute ban on differentiating advance payments between apartment owners, there will be a loophole open to divergent interpretations, which will inevitably result in an increase in court cases involving housing communities – says the lawyer.

Who is responsible for the balcony?

According to the project, the structural elements of the balcony, loggia and terraces constitute common property, the maintenance of which is the responsibility of the community. According to attorney Ciskowski this change does not bring anything new, but only confirms already established case law.

— It mainly concerns construction defects that often occur in these building elements. In practice, there was no doubt that if a construction defect lies in the structural elements of balconies, loggias or terraces, their repair is not the obligation of the individual owner of the premises, but of the community or developer. Problems with balconies, loggias and terraces most often affect the entire building or even an estate, so leaving repairs in the hands of individual residents could do more harm than good, says the expert.

However, he admits that the amendment should reduce the number of court disputes between the owner of the premises and the housing community.

The government is fighting pseudo-hotels

The project's task is to fight the so-called pseudo-hotels. What is it? This is, for example, Hong Kong in Warsaw's Wola district. The whole of Poland probably heard about this investment, because the developer fought for a long time to obtain independence certificates for the premises that he sold as commercial premises in the hotel part of the building. It was a precedent-setting case, but for many people, not only developers, it is a way of doing business.

It works like this. In the areas designated for services in the spatial development plans, the investor is building a hotel building, but each room is a mini-apartment, which is sold as commercial premises. Thanks to this, he does not have to have a minimum usable area of ​​25 square meters for a residential premises and has more premises for sale. Additionally, such a building may have fewer parking spaces, which saves costs.

However, in order to live permanently in such a commercial premises, it must have the status of an independent premises. Currently, due to imprecise regulations, this is possible, although, as shown by the example of the so-called Hong Kong, it is not always possible to obtain the appropriate certificate immediately.

As a rule, however, local governments have no way to block such investments, and therefore to change the draft amendment to the Act on the ownership of premises.

The project provides that the separation of premises in such buildings will be possible when two basic conditions are met. Firstly, current micro-studio apartments must meet the requirements for a residential or commercial premises, but in both cases their area cannot be less than 25 sq m. Secondly, the commune council must, in a resolution, specify the rules for issuing certificates of independence of premises in its area. Without such a resolution, it will not be possible to establish separate ownership in a collective residence building.