Wybrane aspekty zwrotu bonifikaty udzielonej na zakup lokalu mieszkalnego na tle art. 68 ustawy o gospodarce nieruchomościami
Selected aspects of reimbursement of deduction ion price granted for purchase of a living quarters on backgrounds of art. 68 Act on real estate management
Languages of publication
Under the provisions of the Act of 21 August 1997 on real estate management the State Treasury or local government units can sell real estate belonging to them. Furthermore, the Act specifies setting the price for real estate and a possibility of using discounts. The issue of returning a discount is regulated in Article 68 section 2 (as amended) of the Act on real estate management. Additional prerequisites for return-ing a discount were introduced by the Act of 24 August 2007 amending the Act on real estate management and other legal acts, which did not contain interim provisions. The legal obligation for returning a discount arises when the follow-ing three conditions occur: 1) a contract is concluded for selling a prop-erty by a local government unit or by the State Treasury, on the basis of which the purchaser acquires ownership of the property for a dis-counted price, 2) the purchaser concludes a contract for selling this property within five years from its purchase and 3) within 12 months from the date of selling the property, the purchaser concludes another contract on the basis of which the purchaser acquires a property or real estate for residential purposes, with the funds obtained from selling the property purchased from a local government unit. In practice, there are more complicated cases, especially frequent situations when a close person or a relative (purchasing a property from a person who acquired it at a discount) concludes a contract for selling the property as a result of a preliminary contract signed previously in the form of a notarial deed. These are the situations when a close person or a relative concluded a preliminary contract for selling the property in the form of a notarial deed before the amendment to the Act on real estate management became effective, while the contract transferring ownership was concluded after that date. Moreover, pursuant to Article 390 of the Civil Code, if the preliminary contract was concluded in the form of a notarial deed, the purchaser is authorised to enforce the exe-cution of the promised contract. It means that the seller can be forced by the purchaser to conclude the contract for transferring ownership,which results in the obligation to return the discount to the State Treas-ury or to the local government unit. In my opinion, since the amended provisions of the Act on real estate management did not offer an opportunity to adjust to the new regula-tions and thus to minimize the negative consequences of the unfavour-able change in law (e.g. the right to withdraw from the contract), it can be claimed that the obligation to return the uprated discount, intro-duced by the Act of 24 August 2007, is not applicable in such cases.
Publication order reference