Reservation agreement with the developer in the light of the new regulations

On May 20, 2021, the Sejm of the Republic of Poland adopted a new developer act, i.e. the act on the protection of the rights of the buyer of a flat or single-family house and the Development Guarantee Fund, which replaces the previous developer act of September 16, 2011.

Among the new legal solutions, special attention should be paid to the reservation agreement, which was introduced into the Polish legal system as the so-called contract named.

It is worth noting that so far the content of the reservation agreement has generally been freely shaped by the parties (within the limits permitted by law), because it has not been regulated by law in any detail. In practice, the developer imposed the content of the reservation agreement, including the amount of the reservation fee.

The above situation has changed. The provisions of art. 29-34 of the new developer act regulate the content of the reservation agreement, including the permissible amount of the reservation fee.

The new act stipulates that the reservation agreement is not obligatory, but may be concluded optionally. The subject of it is „the obligation to temporarily exclude a flat or a single-family house selected by the booking party from the offer of sale”.

The development agreement must be in writing, otherwise null and void, and shall specify in particular:

1. parties, place and date of conclusion of the contract,
2. the price of a flat or a single-family house selected by the booking party from the sale offer,
3. the amount of the reservation fee, if such a fee has been provided for by the parties,
4. the period for which the flat or single-family house selected by the booking party will be excluded from the sale offer,
5. determination of the location of the apartment in the building,
6. determination of the usable area of ​​a flat or a single-family house, the area and layout of the rooms.

The reservation agreement cannot be concluded for an indefinite period – the term of it’s validity must be specified.

However, what is important, in the case of applying for a loan by the reserving party, this period should take into account the period necessary for the reservation to obtain a credit decision or a promise to grant a loan.

The reservation agreement may impose an obligation on the booking party to pay the reservation fee, but it’s amount may not exceed 1% of the price of a flat or single-family house specified in the information prospectus. The reservation fee is counted towards the purchase price of the property.

The booking fee is immediately returned to the person making the reservation in the event that:

a) the person making the reservation has not obtained a positive credit decision or a promise to grant a loan,

b) the developer fails to fulfill the obligations resulting from the reservation agreement,

c) the developer has changed the prospectus or its appendices without informing the booking party.

Additionally, if the agreement referred to in art. 3 or article. 4 of the new development act, was preceded by a reservation agreement for real estate in Poland, and the seller did not remove the defects reported in the acceptance protocol and the buyer did not proceed to sign the agreement transferring the ownership of the property, the reservation fee is refunded in double amount.

In the above scope, it shall be stated that the new developer act contains solutions favorable to buyers of premises