Securing Legal Title to Property
The key stage preceding the initiation of administrative procedures is securing legal title to the property on which the RES installation is to be located. Holding legal title means having the right to manage and dispose of the property. Therefore, as a first step, an investor planning such an investment should conduct a legal audit of the land property, in particular by reviewing the contents of the land and mortgage register relevant to the given property.
The title that guarantees the fullest protection of the investor’s interests is land ownership.
There is also a practice of erecting RES installations on leased properties. However, the solution entails the risk that the ownership of the plant may be merged with the ownership of the real property. In accordance with the Polish Civil Code, structures erected on a real property share its legal status so the ownership of the system installed on the real property may pass to the land owner.
To minimise the risk, if the RES installation is to be built on a leased property, the investor should make sure that the lease contract expressly address the issue of ownership of the RES installation and include a clear, unconditional provision that the RES installation elements brought by the lessee are not a part of the real property but have been positioned there for temporary use and are owned exclusively by the lessee.
The law does not require a lease contract to have any specific form in order to be deemed valid. An ordinary written form of the contract may be recognised as sufficient to secure the title to a real property. However, an investor may find themselves at a major disadvantage if the real property is sold by the owner to a third party because if this happens, the buyer of the real property acquires the right to terminate the lease. An investor may seek protection against this risk by using a special contract form, i.e. written form with certified date (Polish: ‘data pewna’). Moreover, for the investor to be able to use this protection, the contract must be a fixed-term contract and the real property must be handed over to the lessee. Another solution to reduce the risk is to disclose the rights of the lessee in the title register kept for the real property; this requires signing a written contract with signatures certified by a notary public.