The entry into the Property Register of the areas permanently damaged is provided for by Act LIII of 1995 on the general rules of environmental protection (hereinafter referred to as “Kt”). Acc. to Article 52 of Kt:
“(1) The fact, extent and nature of permanent environmental damage established by a definitive official decision or court ruling shall be entered into the Property Register.
(2) The entry shall be requested by the environmental protection authority or – if liability is established by a court –shall be ordered ex officio by the court.
(3) The cessation of or any change in the fact, extent and nature of the environmental pollution that serves as the basis for the entry shall be established, at the request of the owner of the real property by the authority requesting the entry or the court ordering the entry, and they shall subsequently take measures ex officio to delete or amend the entry.”
The Government Decree 106/1995. (IX. 8.) Korm. on the environmental and nature protectional requirements of liquidation processes and final adjustments (hereinafter referred to as “R”) entered into force not long before the Kt. Article 9 of R prescribes a slightly similar task and provides a similar tool for the environmental inspectorates as Kt.
Article 9 of R
“In the case of changes in ownership the inspectorate shall deliver the official decision issued on the cleaning up of environmental load, if there is any connected with the property in question, to the competent Land Registry Office. Based on the legally binding decision the Land Registry Office indicates the assumption of environmental load on the property register sheet. The inspectorate shall take measures to delete the recorded load from the property register in case that the ordainments of its decision are fulfilled.”
Acc. to the definition set out in R environmental load has a similar meaning to one type of environmental damage, the elimination (or at least mitigation) of which is prescribed by the authority by fixing a future deadline. However, R does not deal with the question of “permanency”, and restricts the field of application: the inspectorate shall contact the Land Registry Office only in cases when the sale of a damaged property is under preparation in the course of the liquidation and/or final adjustment procedure.
The above-mentioned regulations of Kt have a much larger range of application, and as the expression “permanent damage” is nor defined by Kt, neither by any other piece of legislation, it is to be drawn up – acc. to Kt - by the proceeding organ in the course of the official or judicial procedure.
Since the Kt entered into force in 1995 several inspectorates have initiated the entry of permanent damage into the Property Register. Only a part of the initiatives were successful, as some Land Registry Offices did not consider the official rulings appropriate for the registration of the “fact, extent and nature” – as set out by Kt – of the permanent damage. Though other cases were accepted by the Land Registry Offices, there were differences in the content of the official rulings issued by the inspectorates (f. e. the “extent” of the damage may refer to the extent of the damaged area but also to the concentration of pollutants), or in the aspects considered in the course of their preparation, etc.
This guide was elaborated with the aim to establish a common legal and environmental basis for the registration process of permanent damages into the property register. The importance of common principles is stressed by the fact that in every case the permanent damage entry is disadvantageous for the owner of the property, even if he is not liable for it. The entry is significant in the trade of real estates as provided for by the regulations of the Civil Code, and the specifications of Paragraph (1) of Article 102 and Article 104 of Kt determining liability; it draws the attention of the future owner to the environmental status of the property and at the same time it indicates clearly that the damage was caused prior to the sale of the property.
The proposals presented by this guide take into consideration that apart from the general prescription of Kt there is no legislation to specify all possibilities offered by such regulation. After all the proposals are in accordance with the currently available drafts of the relevant legislation, especially with the drafts of the new act on property registering and the relating decree, and of the government decree on the protection of groundwaters.
The proposals of this guide are all feasible in the present legal environment and under the present financial-professional operation conditions of the relevant (not only environmental) authorities.