A purchase of a residential unit on the primary market is in principle a long and complicated procedure. For buyers, the purchase of a residential unit is often of major importance. Therefore, the team of Jedliński, Bierecki and Partners Law Firm, which employs counsels at law and solicitors with long experience, renders services of analysing developer agreements as well as any and all claims relating to the purchase of real estate.
Why is it worth using assistance of a lawyer before executing a developer agreement?
As it has been mentioned before, purchasing a residential unit from a developer is a complicated procedure. A developer uses multi-page model agreements that are written in a legal language, which is not always comprehensible for a consumer. Therefore, numerous potential buyers decide to sign such a document only after its cursory reading. Such behaviour may contribute to numerous disappointments that will prevent one from enjoying benefits of having an own residential unit or a purchased investment. A developer agreement is written by lawyers whose primary objective is to secure a developer’s interests. Rights of a potential buyer, presented to persuade one to execute an agreement, are often fictitious.
What should be taken into consideration before executing a contract with a developer?
A consumer who wishes to buy a residential unit from a developer should first of all analyse the content of an agreement before signing it, including in terms of so-called abusive clauses. A definition of an abusive clause is given in art. 3851 of the Civil Code. According to this regulation: ‘Provisions of a contract executed with a consumer that are not agreed upon individually are not binding for a consumer, if they determine his rights and duties in a manner that is contrary to good practice, grossly violating his interests (abusive contractual provisions). This definition does not concern provisions that determine main duties of the parties, including a price or remuneration, if they have been formulated in an explicit manner.’
Why is a developer agreement worth checking in terms of abusive clauses before its signing? Because any and all provisions that are non-negotiable and establish rights and duties of a consumer in a manner that is contrary to good practice will be ‘invalid’, while keeping the validity of developer agreement in the remaining scope.
A developer agreement that:
is of abusive nature.
The above list is not exclusive and is exemplary only.
The following examples show various abusive clauses entered into the Register kept by the Office of Competition and Consumer Protection (UOKiK):
What to do if a developer agreement contains any abusive clauses?
If an agreement has not been signed yet, the buyer of a residential unit may inform the developer of specific provisions that are abusive and request for their amendment or deletion. A developer is not obliged to fulfil the request. A refusal shall constitute a warning for a buyer that it is not worth signing a serious contract with such an entity.
If an agreement has been already signed, a buyer should also request a developer for an amendment or deletion of an abusive provision. If a developer does not fulfil the request in this case, a consumer should file a case to court for invalidating an abusive clause.
Notwithstanding the above, a consumer may inform the Consumer Ombudsman, a consumer organization or the Office of Competition and Consumer Protection of a suspicion that a developer uses abusive clauses in a model agreement.
Mission of the Law Firm
The mission of Jedliński, Bierecki and Partners Law Firm is to provide legal assistance of excellent quality, in order to uphold basic principles of the rule of law and develop them in Poland. Therefore, a dedicated department has been set up in our Law Firm specialising in the broad concept of real estate law, including especially developer agreements. In this department, our lawyers prepare legal opinions, provide legal assistance, represent consumers before developers at a pre-court stage, represent consumers before courts in disputes with developers and draw up contracts.