Just a few years ago, the certificate of independence of the premises functioned in trading practice as a technical stage of the investment process. Developers assumed that if the project was implemented in accordance with the building permit and the premises met the statutory requirements – it was separated by permanent walls, functionally separated and allowed for independent use – the administrative authority would issue the document without any major complications.
Today the situation is different. As noted by legal advisors Dominika Gozdalska and Aleksandra Grabarska from the KBiW law firm, the certificate is no longer a purely declaratory confirmation of technical condition. It happened a point of contact between two legal orders: property law and planning and construction law.
– What used to be a formal activity not long ago is increasingly becoming an instrument for controlling the investment model – experts point out. In their opinion the procedure for issuing a certificate begins to serve as an additional verification of the compliance of the investment with the local spatial development plan (MPZP) and the building permit.
The most visible is this in projects described as quasi-residential: micro-apartments, aparthotels or investments carried out in service areaswhich in practice are sold to individual buyers as an alternative to classic apartments.
In the famous case of the Warsaw investment, known in the media as “Hong Kong”, the Local Government Appeals Court in Warsaw in its decision of February 13, 2026 (KOC/7497/Zs/25) emphasized that meeting the technical requirements of the Act on the Ownership of Premises may not be sufficient if the separation would conflict with the Local Development Plan or a building permit. This is a signal that the authority may look at the certificate more broadly than before.
The question that is asked more and more often in this context is of fundamental importance for the market: should the authority examine only the premises of the Act on the ownership of premises, or also compliance with the local plan and the construction law regime?
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Local development plan and property rights – dispute over the scope of competences
Supporters narrow interpretation, they emphasize that the Act on the ownership of premises does not make independence dependent on compliance with local development plans. In their opinion, planning control takes place at the stage of obtaining a building permit, and the certification procedure should not become a “second round” of assessing the compliance of the investment with the plan.
This position was expressed, among others, by: in the judgment of the Provincial Administrative Court in Warsaw of June 28, 2024 (VII SA/Wa 2617/23). The court pointed out that issuing a certificate only enables the establishment of separate ownership of the premises and does not change its purpose or method of use. The authority's competences should focus on the premises specified in the Act.
On the other hand the extension approach assumes that the separation of ownership produces a real market effect. If the area is intended for a service function and the investor aims to mass separate premises offered as a substitute for apartments, the authority – according to this concept – should not sanction such a model.
As attorneys Gozdalska and Grabarska emphasize, the dispute is not purely theoretical. — Some cities refuse to issue certificates in hotel facilities sold to individual buyers, others allow separation if certain parameters are met.. The lack of uniform practice means legal uncertainty, they point out.
They also appeared in case law intermediate positions. The judgment of the Supreme Administrative Court of July 3, 2024 (II OSK 929/23) indicated the inadmissibility of allocating a larger number of residential premises if it would lead to confirmation of a condition inconsistent with the local plan and the qualification of the facility in the construction law.
According to experts, the line is thin. — The local development plan may be important when assessing the compliance of the actual state with applicable administrative decisions, but it should not be used to predict the future use of the premises by the buyer. – they emphasize. If the problem is a change of use, the control instruments are provided for in the construction law.
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Risk for developers and banks – market chilling effect
The consequences of refusing to issue a certificate go far beyond the document itself. The certificate states the basis for establishing separate ownership of the premises, establishing a land and mortgage register, selling and establishing a mortgage.
The lack of a document means that the premises cannot be fully introduced to banking circulation. For buyers, this translates into difficulties in obtaining mortgage financing. For the developer – contractual risk and loss of sales liquidity.
— A premises without separate ownership becomes legally incomplete. Its market liquidity is decreasing and regulatory risk is increasing, legal advisors point out. In extreme cases, this may lead to disputes with clients over delays in the transfer of ownership, annexation of contracts and even claims for damages.
In the financial dimension, the consequences are even wider. Banks, observing discrepancies in the authorities' practice, are beginning to be more cautious about financing quasi-residential projects. Higher margins and additional security raise the cost of capital. As a result, the cost of regulatory uncertainty is passed on to buyers.
Experts speak directly about the chilling effect. — Uncertainty regarding the possibility of separating premises affects business models. Investors calculate a higher risk, and some projects may not come to fruition at all, they estimate.
Legislator in the face of a systemic gap
The source of the problem is not only the discrepancy in interpretation. This is also a systemic loophole. The legislator did not explicitly foresee a situation in which the investment model would make such extensive use of the tension between the service function and the actual use of the facility.
According to lawyers, they are possible at least three legislative directions. Firstly, clarification of the act on ownership of premises by clearly defining the scope of examination in the proceedings for issuing a certificate. Secondly, introducing provisions in the planning act regulating the possibility of separating premises in buildings with a specific function, e.g. hotel or service. Thirdly, creation of a separate legal category for quasi-residential premises.
— Predictability is key. The investor should know already at the stage of purchasing the land whether the sales model will be acceptable. The buyer must be clear about the legal status of the premises, and the bank must be able to reliably assess the risk, emphasize the authors of the commentary.
In their opinion stability of real estate transactions is a system value. The dispute over the independence of the premises does not concern one project or one administrative decision. It's a clash of two logics: construction of property rights and urban spatial policy.
Until the legislator clearly defines the relationship between the Act on ownership of premises and planning and construction regulations, similar conflicts will continue.. And the market – including developers, buyers and financial institutions – will remain in a state of increased regulatory uncertainty, which in 2026 will become one of the key factors influencing investment decisions in the real estate segment.
