Publikacje

Acquisition of real estate in Poland by a foreigner versus permanent residence

Pursuant to the Act of March 24, 1920 on the acquisition of real estate by foreigners:

“Acquisition of real estate by a foreigner requires a permit. The permit is issued by way of an administrative decision by the minister of internal affairs, if the Minister of National Defense does not raise an objection, and in the case of agricultural real estate, if no objection is raised by the minister responsible for rural development.”1 Acquisition of real estate is understood as the acquisition of the ownership right to this real estate or the right of perpetual usufruct, based on any legal event2. Acquisition of real estate by a foreigner contrary to the provisions of the Act is invalid. The invalidity of such a transaction shall be declared by a court, also upon a request of the head of the commune (mayor, city president), the head of the county (starosta), the marshal of the voivodship (marszałek województwa), or the governor of the voivodship (wojewoda) that are competent according to the location of the real estate, or at the request of the minister of internal affairs3.

For the purposes of the above Act, the scope of the term “foreigner” includes:

a natural person who does not have Polish citizenship,
a legal person with its seat abroad,
an unincorporated company of a natural person without Polish citizenship or a legal person seated abroad, having its seat abroad, established in accordance with the legislation of foreign countries,
a legal person and a commercial company without legal personality, seated in the territory of Poland, controlled directly or indirectly by:
- a natural person citizenship, or
- a legal person seated abroad, or
- an unincorporated company of a natural person without Polish citizenship or a legal person seated abroad, having its seat abroad, established in accordance with the legislation of foreign countries4.

It should be noted that the Act provides for a number of exceptions from the permit requirement, including strictly personal conditions, inter alia, the Act states that the permit is not required in case of:

a purchase of real estate by a foreigner residing in Poland for at least 5 years from granting him/ her a permanent residence permit or a residence permit for a long-term EU resident;
an acquisition by a foreigner who is a spouse of a Polish citizen and residing in Poland for at least 2 years from granting him/her a permanent residence permit or a residence permit for a long-term EU resident, of real estate, which, as a result of the acquisition, will constitute a statutory community property of spouses5;
an acquisition of real estate by a foreigner who is a citizen or entrepreneur of states – parties to the agreement on the European Economic Area or the Swiss Confederation, with the exception of an acquisition of agricultural and forest real estate – for a period of 12 years from the date of Poland’s accession to the EU, or an acquisition of a second house – for a period of 5 years from the date of Poland’s accession to the EU6. The Act provides for exceptions to the aforementioned time limits7.

However, the exemptions mentioned in the Act do not apply to real estate located in the border zone and to agricultural land with an area exceeding 1 ha8.

Permanent residence

In the above context, it should be noted that there is no legal definition of a permanent residence in Polish law. It can be added that granting it “is a result of establishing ties with Poland and has far-reaching consequences for a given foreigner’s legal situation, as it makes him/her equal to Polish citizens in many respects.”9 Having permanent residence is also a circumstance that confirms ties of a foreigner with Poland in the case of applying for a permit to acquire real estate10.

It follows directly from the provisions of the Act on foreigners that permanent residence may be granted only at the request of a foreigner for an indefinite period11. The permit is issued as an administrative decision12. However, this decision may be withdrawn in the cases specified in the Act13. Due to the fact that the Act on foreigners does not specify a deadline for the decision revoking the permanent residence permit, it seems that Article 156 of the Code of Administrative Procedure shall apply, i.e. withdrawal (declaration of invalidity) may take place within 10 years from the date of delivery or publication of the decision. Therefore, it should be assumed that a foreigner’s permanent residence remains suspended for 10 years.

The Act on foreigners lists categories of persons having specified characteristics who can be granted a permanent residence permit. Therefore, a person who can submit an application for the permit having chances for a positive outcome, is a foreigner who:

is a child of a foreigner who has been granted a permanent residence permit or a residence permit for a long-term EU resident, being under his/her parental authority:
- born after the foreigner had been granted a permanent residence permit or a residence permit for a long-term EU resident14, or
- born during the period of validity of the temporary residence permit granted to that foreigner or during the period of this foreigner’s stay in Poland on the basis of a residence permit for humanitarian reasons or a permit for tolerated stay or in connection with granting him/ her a refugee status or subsidiary protection15, or
is a child of a Polish citizen being under his/her parental authority16, or
is a person of Polish origin and intends to settle in Poland permanently17, or
is married to a Polish citizen and the marriage is recognised by Polish law, and has been married for at least 3 years before the date of applying for a permanent residence permit, and directly before submitting the relevant application, s/he has been staying in Poland continuously for a period not shorter than 2 years on the basis of a temporary residence permit granted in connection with being married to this Polish citizen or in connection with obtaining refugee status, subsidiary protection or consent to stay for humanitarian reasons18, or
is a victim of human trafficking within the meaning of Article 115 § 22 of the Criminal Code, and has been residing in Poland directly before submitting the application for a permanent residence permit for a period of at least 1 year on the basis of a temporary residence permit for victims of human trafficking, cooperated with law enforcement authorities in criminal proceedings concerning the crime of human trafficking (Article 189a § 1 of the Criminal Code), has reasonable concerns about returning to his/ her country of origin19, or
directly before submitting the application for granting a permanent residence permit, s/he has been residing in Poland continuously for a period not shorter than:
- 5 years in connection with granting him/her the refugee status, granting subsidiary protection or on the basis of a consent to stay for humanitarian reasons20, or
- 10 years on the basis of a tolerated stay permit, or
- 4 years on the basis of a temporary residence and work permit granted due to the performance of work in a profession desirable for the Polish economy and has a stable and regular source of income sufficient to cover the cost of living for himself/herself and his/her dependent family members21, or
was granted asylum in Poland, or
has a valid Polish Card and intends to settle in Poland permanently23.

A residence permit for a long-term EU resident

The Act on foreigners of 2013 stipulates that a residence permit for a long-term EU resident can be granted to a foreigner for an indefinite period, upon his/her request, if s/he has been staying in Poland legally and continuously for at least 5 years directly before submitting the application. The foreigner must additionally fulfil all of the following conditions:

to have a source of stable and regular income sufficient to cover the cost of living for oneself and for dependent family members,
to have health insurance within the meaning of the Act of August 27, 2004 on health care services financed from public funds, or confirmation that an insurer covers the costs of health treatment in Poland,
to have knowledge of the Polish language, and this knowledge has to be documented24.

Dr Andrzej Kiedrzyn Radca prawny | Counselor at Law T: +48 22 447 43 00 E: kiedrzyn@millercanfield.com

Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.

1. Art. 1 ust. 1 Ustawy z dnia 24 marca 1920 r. o nabywaniu nieruchomości przez cudzoziemców (t.j. Dz.U.2016.1061) / Article 1 sec. 1 of the

Act of March 24, 1920 on the acquisition of real estate by foreigners (consolidated text, Journal of Laws of 2016 item 1061)

2. Art. 1 ust. 4 Ustawy z dnia 24 marca 1920 r., op. cit./ Article 1 sec. 4 of the Act of March 24, 1920, op. cit.

3. Art. 6 ust. 1 i ust. 2 Ustawy z dnia 24 marca 1920 r., op. cit. / Article 6 sec. 1 and 2 of the Act of March 24, 1920, op. cit.

4. Art. 1 ust. 2 Ustawy z dnia 24 marca 1920 r., op. cit. / Article 1 sec. 2 of the Act of March 24, 1920, op. cit.

5. Art. 8 ust. 1 pkt 2) i pkt 3) Ustawy z dnia 24 marca 1920 r., op. cit. / Article 8 sec. 1 points 2) and 3) of the Act of March 24, 1920, op. cit.

6. Art. 8 ust. 2 Ustawy z dnia 24 marca 1920 r., op. cit. / Article 8 sec. 2 of the Act of March 24, 1920, op. cit.

7. Art. 8 ust. 2a Ustawy z dnia 24 marca 1920 r., op. cit. / Article 8 sec. 2a of the Act of March 24, 1920, op. cit.

8. Art. 8 ust. 3 Ustawy z dnia 24 marca 1920 r., op. cit. / Article 8 sec. 3 of the Act of March 24, 1920, op. cit.

9. Prawo o cudzoziemcach. Komentarz, red. J. Chlebny, Wydawnictwo C.H. Beck, Warszawa 2006, s. 150. Cytowany pogląd odnosił się do

„zezwolenia na osiedlenie się” uregulowanego w ustawie – Prawo o cudzoziemcach z 2003 r., odpowiadającemu aktualnemu „pobytowi

stałemu”. / Law on foreigners. Commentary, ed. J. Chlebny, C.H. Beck Publishing House, Warsaw 2006, p. 150. The quoted view referred to

the ‘permit to settle’ regulated in the Act – Law on foreigners, of 2003, corresponding to the current ‘permanent residence’.

10. Art. 1a ust. 2 pkt 3) lit b) Ustawy z dnia 24 marca 1920 r., op. cit. / Article 1a sec. 2 point 3) letter b) of the Act of March 24, 1920, op. cit.

11. Art. 195 ust. 1 Ustawy z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz.U.2020.35) / Article 195 sec. 1 of the Act of December 12, 2013

on foreigners (consolidated text, Journal of Laws of 2020, item 35)

12. Art. 201 ust. 1 Ustawy z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz.U.2020.35) / Article 201 sec. 1 of the Act of December 12, 2013

on foreigners (consolidated text, Journal of Laws of 2020, item 35)

13. Art. 199 i art. 201 ust. 2 i ust. 3 Ustawy z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz.U.2020.35) / Article 199 and Article 201 sec. 2

and 3 of the Act of December 12, 2013 on foreigners (consolidated text, Journal of Laws of 2020, item 35)

14. Art. 195 ust. 1 pkt 1) lit a) Ustawy z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz.U.2020.35) / Article 195 sec. 1 point 1) letter a) of

the Act of December 12, 2013 on foreigners (consolidated text, Journal of Laws of 2020, item 35)

15. Art. 195 ust. 1 pkt 1) lit b) Ustawy z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz.U.2020.35) / Article 195 sec. 1 point 1) letter b) of

the Act of December 12, 2013 on foreigners (consolidated text, Journal of Laws of 2020, item 35)

16. Art. 195 ust. 1 pkt 2) Ustawy z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz.U.2020.35) / Article 195 sec. 1 point 2) of the Act of