Do mandatory pre-emption rights apply to the sale of real estate assets in this country?
Under Polish law, a number of pre-emption rights exist. The most important pre-emption rights under Polish law are described below.
The community (ustawowe prawo pierwokupu gminy) has pre-emption rights in relation to real estate appearing in the register of historical monuments or that is designated for public utility purposes (although such pre-emption rights must be disclosed in the relevant land and mortgage register in order to be binding), as well as in relation to undeveloped land that was acquired by the seller directly from the State Treasury or the local authority and in relation to perpetual usufruct right of the undeveloped land irrespective of the form of acquisition of that right by the seller.
National parks, acting for the benefit of the State Treasury have pre-emption rights in relation to real estate located within the borders of the parks.
A tenant has pre-emption rights in relation to agricultural real estate.
The National Agricultural Support Centre has pre-emption rights in relation to agricultural real estate and forests (in some circumstances). The law on suspending the sale of the real properties of the National Agricultural Support Centre, in force since 30 April 2016, extends the pre-emption right of the National Agricultural Support Centre to any agricultural property (with an area of arable land at least 0.3 hectares) and introduces a pre-emption right of the National Agricultural Support Centre in relation to the purchase of shares or stocks in a capital company, which is an owner or perpetual usufructuary of agricultural property with a surface area of at least 5 hectares or agricultural properties with a total surface area of at least 5 hectares. The above-mentioned pre-emption right of the National Agricultural Support Centre was extended in relation to the purchase of shares or stocks in a capital company which is a mother company of a company owning or being a perpetual usufructuary of agricultural property with a surface area of at least 5 hectares or agricultural properties with a total surface area of at least 5 hectares. The pre-emption right the National Agricultural Support Centre in relation to the purchase of shares in a commercial company, which owns agricultural property (with an area of at least 5 hectares) is not applied to the sale of the stocks on the stock exchange, the commercial companies or groups of commercial companies operating in the electricity, oil and gas fuels sectors (which assets have been disclosed in the appropriate registers) and to the sale of the shares or stocks for the benefit of the close relatives.
Based on the law on suspending the sale of the real properties of the National Agricultural Support Centre, in force since 30 April 2016, in the case of the changes of the partners in a partnership (ie change of the partner or entering of a new partners to the partnership), which is an owner or perpetual usufructuary of agricultural property with an area of at least 5 hectares or agricultural properties with a total surface area of at least 5 hectares, the National Agricultural Support Centre is entitled to submit a statement on the acquisition of the agricultural real property owned by this partnership for the pecuniary equivalent corresponding with the market value of this real property. The entitlement referred to in the previous sentence does not apply if the current partner is replaced by its close relative as well as if the new partner entering into the partnership is a close relative of the current partners.
The above-mentioned limitations provided for in the law on suspending the sale of the real properties of the National Agricultural Support Centre, in force since 30 April 2016, do not apply to agricultural real properties with an arable area of less than 0.3 hectares. These limitations also do not apply to agricultural real properties located on the areas designated in the local zoning plans for non-agricultural purposes, as well as to the agricultural real properties with respect to which, according to the status as on 30 April 2016, there were in force final zoning decisions providing for the designation of these real properties for non-agricultural purposes. Moreover, the real properties for which a resolution on localization of housing or associated investment has been adopted or that are being sold for purpose of realization of such investment are exempt from the limitations.
Co-owners of agricultural real estate have pre-emption rights, although these do not apply if the owner wants to transfer his or her share of the property to relatives.
The manager of a special economic zone has pre-emption rights in relation to real estate located in the zone. Under the Anti-Crisis Shield 4.0 bill, introduced to combat the economic consequences of COVID-19, this right has been extended to include State's agricultural property stock properties designated in the local zoning plan for industrial, service or industrial and service purposes, in relation to which the manager performs the property management, while the property is not located within the boundaries of the special economic zone managed by the appropriate manager.