On 14 July 2011 the Council of Ministers adopted an amendment to the Regulation on the valuation of real estate and on the preparation of valuation reports. The most significant change involves the principle of valuing real estate to be expropriated for the construction of public roads.
Valuation comparative method
As a general rule, plots of land that are to be expropriated are being valued using the comparative method. This involves estimating the value of the land by comparing it to transaction prices of similar plots of land (in terms of their designation, location etc.). However, under the pre-amendment version of the Regulation, the value of plots of land expropriated for the purposes of building public roads was compared only to the value of similar plots which are occupied or soon to be occupied by public roads. This rule applied to any plot of land regardless of its former designation.
Questions of constitutional legitimacy
The above method of valuation applicable for the plots to be occupied by public roads is an extremely peculiar institution and has given rise to many questions of a constitutional nature. There have been claims that it violates the constitutional right to fair compensation for expropriation, and it was argued that the method distorts the essence of the ordinary comparative method, as the value of land designated for public roads is usually lower than the value of other real estate. In response to such remarks, in January 2010 the Polish ombudsman filed a motion with the Constitutional Tribunal for the method to be declared in violation of the Polish Constitution. The motion has not yet been heard.
A return to general principles
In the meantime, the Ministry of Infrastructure prepared an amendment to the Regulation, which was adopted by the Council of Ministers on 14 July 2011. The amendment requires the valuation of real estate to be expropriated for public roads to be based on the ordinary comparative method. The amended regulation is still awaiting publication in the official journal. It will come into force 14 days after publication.
The general legal rule is that until the Constitutional Tribunal declares any legal act (such as acts of Parliament, Regulations of Council of Ministers and of Ministers) inconsistent with the Constitution, decisions made under such act are deemed valid. Thus anyone who has a grievance with a decision that was made under the pre-amendment version of the Regulation cannot demand that their case be re-opened so long as its provisions have not been officially declared unconstitutional. Such people now find themselves in an unfortunate position as the ombudsman’s motion may be discontinued because the Regulation in its pre-amendment version is no longer in force. The motion will only be heard if the Constitutional Tribunal finds there is a glaring public interest in hearing the case. If not, in some sense, this amendment may be regarded as a legislative stratagem aimed at ensuring public bodies do not have to revalue already paid compensations.