Magdalena Habdas

Стаття присвячена дослідженню меж земельної ділянки у горизонтальній та вертикальній площинах, як об’єкта права власності, відповідно до польського законодавства. Якщо горизонтальні межі мають точну демаркацію на поверхні землі, то у другому випадку автором встановлено, що і польський законодавець, і польська судова практика не застосовують будь-яких приблизних значень висоти у надземному просторі та глибини у підземному [...]Докладніше... from Хабдас Магдалена. Визначення меж земельної ділянки у вертикальній площині

The goal of the paper is to assess the social implications of an ineffective legal intervention, which consists of introducing ownership restrictions concerning residential real estate located in the vicinity of airports. The paper evaluates Polish law in the context of the legislator's environmental aims and compares current regulations in Poland with solutions adopted in English law and American jurisdictions. The social and economic impact of ineffective legal intervention is calculated for the KTW airport case study with the use of information about the structure and value of filed and awarded claims for damages. With the use of this data, in the empirical part of the paper, we evaluate the factual transaction costs of public intervention for that airport, as well as ones which would occur if, instead of the Polish model, the American and the English models of compensation were applied. This allows us to explain the socio-economic consequences of adopting a given solution as well as to assess whether it fulfils desirable objectives. It also provides an opportunity to assess the models in the context of devising legally and economically justified compensation for landowners near airports affected by aircraft noise. The paper narrows the gap in the legal and economic knowledge related to the types and implications of ownership restrictions introduced in the vicinity of airports.

The article deals with compensating market value diminution of real estate, the cause of which is a land use restriction imposed by a local legislative act. This constitutes damage caused by legal activity of a public body, i.e., legal damage. We focus on determining compensation in housing markets in restricted use areas (RUAs) of civil airports and attempt to clarify the principles of compensation in a legal and economic context. The point of reference is argumentation presented in the Supreme Court’s decision of 28 October 2022, II CSKP 678/22, which considers the object and scope of compensation. We analyse the correctness and the effects of introducing a legal principle, where the event causing damage is defined as the mere fact of creating a RUA, while according to Article 129(2) of the Environmental Protection Law it should be the introduction of a restriction on land use. The proposal to identify the event causing damage and its effects with the introduction of a RUA and its impact on the conditions of the functioning of the market is assessed critically. The Supreme Court indicates that when determining the existence and the size of loss, instead of the differential method based on the unambiguous category of market value, a differential method based on the methodologically imprecise and economically ambiguous category of the market should be applied. Consequently, the Supreme Court considers it justified to compensate for loss resulting from the deterioration of the market caused by its “stigmatization”. It has been established that in order to show market value diminution of real estate it is necessary to determine the type and the size of a negative change in the characteristics of the real estate in question. Subsequently, the difference between the values for the factual and the hypothetical state of real estate shows value diminution. It illustrates compensable legal damage. Moreover, it is argued that implementing the Supreme Court’s interpretation prevents achieving the goal of public intervention and increases the social costs of conflict resolution.

Incompatible uses of land create neighbor conflicts connected with the notions of civil law immissions (non-trespassory invasions) or common law nuisance. These traditional instruments of resolving the neighbor conflict have their limitations when pollution (such as noise pollution produced by aviation) interferes with the use and enjoyment of land that affects numerous landowners. Lawmakers seek to resolve the neighbor conflict with public intervention in such circumstances. Instead of relying on the market, the state allocates entitlements, indicates how parties must behave, and prescribes the conditions under which lawmakers should conclude an agreement. Interestingly, although the nuisance caused by airport noise has the same characteristics worldwide, no uniform solutions are applied. Existing literature regarding airport externalities concentrates on land values, land use, measuring noise, and the influence of noise on human health. Little has been written on legal solutions that seek to balance opposing sides’ interests and indemnify the aggrieved landowners. This Article aims to provide a comparative overview of how lawmakers seek to balance the interests of airports and homeowners in selected European jurisdictions, namely Germany, France, the Netherlands, and Poland. The analysis is based on Richard Posner’s positive analysis, which allows for a systematic description and explanation of the legal system. Understanding the regulating behavior and its effect on the regulated behavior is important when considering possible amendments and developments of the law. The Article begins with assessing the features of a neighbor conflict, analyzes potential property or liability solutions, and then focuses on the public intervention employed to resolve the conflict. A comparison of the various solutions and their underlying assumptions will allow assessing to what extent they are suitable to achieve the objective of conflict resolution and balancing of interests. This Article identifies inconsistencies in policies as compared to the applied economic and legal instruments to indicate good practices in resolving this particular neighbor conflict and provide a basis for future normative analyses.

Negative externalities of airport operations, associated mostly with noise, are becoming increasingly onerous to homeowners, as air transport develops. In order to resolve the neighbour conflict, the legislator introduces restricted use areas (RUAs) within which noise levels may be exceeded. In these areas, limitations in the use of land are introduced in order to ensure rational development of land surrounding airports and compensation claims are awarded to landowners. These claims compensate planning restrictions concerning the use of land and costs spent on ensuring sound insulation of buildings. The practical application of provisions on RUAs diverges from their literal content bringing about the compensation of loss without a legal and economic justification and the abandonment of the provisions’ objectives. It is argued that a revision of current practice is required in order to fulfill the legal, social and economic objectives of the regulations in force.

In Poland, after privatization and the ensuing lack of public housing, an unbalanced housing policy induced governments to place the social and financial burden of housing low income groups on landlords up to the 1990s. However, the jurisprudence of the European Court of Human Rights has stopped this approach by finding a violation of the owner’s freedom of property. This case law has also had repercussions in neighbouring countries where landlords were exposed to similar problems. It impressively shows the supranational constitutional dimension of commutative justice limiting national legislators. As a reaction, tenancy legislation was deregulated in Poland and its neighbouring countries; and the long-standing fragmentation of the market into privileged and non-privileged rentals as well as the communist legacy of the so-called tenant quasi-ownership were abolished. The new Polish law sets forth detailed provisions on rent setting and rent increase; in particular, the rent must not, as a rule, exceed 3 per cent of the dwelling’s reconstruction value. Shorter time-limited tenancies have been introduced so as to promote the offer of additional dwellings. Despite these reforms, the housing situation in Poland is tense due to a lack of rental dwellings in particular for low income groups.