UOKiK questions too general power of attorney stipulated in development contract

On 28^th of June 2019, the Office of Competition and Consumer Protection by the decision No. RPZ 5/2019 imposed on company 3DOM S.A. seated in Poznań, financial penalties for using prohibited clauses in development contracts concluded by the company. One of the contested clauses concerned the power of attorney granted by the consumer to the developer to vote and conduct all other activities related to the division of common property for use or merger and division of premises. In the opinion of UOKiK, on the basis of the power of attorney formulated in this way, the developer could decide on many important matters, e.g. change the purpose of premises or associated rooms, which may not always be in the interest of the consumer. Importantly, according to UOKiK, the power of attorney was formulated imprecisely, so it is not known exactly what actions the developer could take on behalf of the client and under which circumstances.

UOKiK also expressed the view that the provisions regarding powers of attorney should be a separate document formulated precisely and unambiguously, so that the buyer could not overlook this and be aware of the consequences of the authorization granted.

The powers of attorney granted to the developer by the buyer in the development contract are in practice necessary for the developer to efficiently implement the investment, establish the necessary easements or appoint the first manager of the housing community. UOKiK notes, however, that authoriziations granted to developers may not allow them to make arbitrary decisions against the interests of consumers. It is therefore crucial that the powers of attorney are formulated in an unambiguous and precise manner so that the consumer is aware of what specific actions the developer may take on behalf of the consumer and what the declarations of will and knowledge on behalf of the consumer may relate to.

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