{"id":13612,"date":"2026-06-08T21:25:22","date_gmt":"2026-06-08T21:25:22","guid":{"rendered":"https:\/\/millercanfield.pl\/?p=13612"},"modified":"2026-06-08T21:36:15","modified_gmt":"2026-06-08T21:36:15","slug":"draft-amendment-to-the-developer-act-key-changes-affecting-housing-developers","status":"publish","type":"post","link":"https:\/\/millercanfield.pl\/en\/draft-amendment-to-the-developer-act-key-changes-affecting-housing-developers\/","title":{"rendered":"DRAFT AMENDMENT TO THE DEVELOPER ACT: KEY CHANGES AFFECTING HOUSING DEVELOPERS"},"content":{"rendered":"\t\t
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The Ministry of Development and Technology has prepared a draft amendment to Poland\u2019s Developer Act. The proposed changes are intended to strengthen consumer protection for buyers of apartments and single-family homes on the primary market by introducing additional obligations for developers.<\/p>

1. Introduction<\/h2>

The Government Legislation Centre (RCL) has published on its website the draft text of a proposed bill amending the Act of 20 May 2021 on the Protection of the Rights of Home Buyers and the Developer Guarantee Fund (commonly known as, and henceforth referred to as the Developer Act<\/strong>, or simply the Act<\/strong>). Authored by the Ministry of Development and Technology (MRiT), the stated objective of the amendment (henceforth Draft Amendment<\/strong>; reference number in the schedule of works of the Council of Ministers: UD361) is to strengthen the protection of buyers of apartments and single-family houses on the primary market. Below we provide an overview of the most important changes affecting housing developers. \u00a0\u00a0\u00a0\u00a0<\/p>

Before we get to the substance, a word on dates of entry into force. In principle, the proposed changes are supposed to take effect 30 days after the amendment\u2019s publication in the Journal of Laws. But there are a few exceptions: for example, the change concerning how to calculate usable area will come into effect the day after publication; the proposed changes to the contents of the Housing Transactions Data Portal (DOM Portal) are to be implemented in stages through March 2027; whereas new information requirements for developers’ websites come with a 3-month vacatio legis. Changes concerning agreements between developers and buyers will apply only to agreements concluded after the amendment\u2019s date of coming into effect. Likewise, new provisions on the liquidation of housing project SPVs will apply to liquidation proceedings initiated after the amendment\u2019s effective date, and changes to the acceptance (handover procedure will not apply to handovers which dates are set before the amendment comes into force.<\/p>

2. No price increases after contract signing<\/h2>

One of the most practically significant changes is that the developer will be prohibited from adjusting the sale price of the apartment or house to the buyer\u2019s disadvantage subsequent to the conclusion of the development agreement or obligatory agreement (newly proposed Article 36a of the Act). Any clauses contained in the agreement entitling the developer to increase the price in the future would be invalid by law.<\/p>

Existing law does not prohibit the developer from increasing the contractual price, merely requiring the developer to inform the buyer, in the information prospectus, about the possibility and conditions of such an increase. In the explanatory memorandum, MRiT cites the position of the Office of Competition and Consumer Protection (UOKiK), which has stated that the developer, as a professional entity, should set the sale price in a way that takes into account the risk of changes in project costs. Although large developers use price-indexation clauses less and less often already, the Draft Amendment settles this issue definitively.<\/p>

The change means that developers will need to revise their pricing policies. They will have to estimate project costs more accurately already when setting the list price, as it will not be possible to pass the risk of cost increases on to the buyer after contract signing.<\/p>

3. Restrictions on liquidation of SPVs, warranty liability passes to shareholders in case of LLCs<\/strong><\/h2>

In provisions without precedent in Polish company law, the Draft Amendment seeks to address situations where developers liquidate special purpose vehicles (SPVs) set up to deliver individual housing projects after they have sold all the apartments or houses in the project, but before the expiry of the 5-year warranty period for their defects, thus depriving buyers of the possibility to pursue claims against such a company. It introduces two different safeguard mechanisms, depending on the legal form of the SPV:<\/p>

  • limited liability company (LLC) \u2013 liquidation may take place before the expiry of the term of warranty liability for defects, however the above liability is transferred by force of law to all shareholders of the LLC jointly and severally on the date of its liquidation, and this principle cannot be excluded in the LLC\u2019s articles of association (newly proposed Article 28a of the Act);<\/li>
  • simple joint-stock company, joint-stock company \u2013 liquidation may not take place earlier than 5 years after the handover of apartments or houses to buyers (newly proposed Articles 28b and 28c of the Act).<\/li><\/ul>

    Setting aside its justification, the proposal raises significant concerns from a systemic standpoint \u2013 the concept of subsidiary liability of the shareholders of an LLC for the obligations of the LLC after its liquidation is unknown in the current Polish legal system, as the absence of shareholder liability for the obligations of the company is part of the legal essence of the LLC. Under existing law, only members of the management board and liquidators may be subject to such subsidiary liability.<\/p>

    In the case of large developers, a better alternative would be if the Developer Act allowed for the warranty obligations of the liquidated SPV to be transferred to another entity within the holding group (e.g. to the parent company), which would reduce the costs of maintaining inactive SPVs while protecting buyers\u2019 interests.<\/p>

    4. Changes in the acceptance procedure<\/h2>

    The Draft Amendment modifies the procedure of acceptance by the buyer of the purchased apartment or single-family house in several important respects (changes in Article 41 of the Act):<\/p>

    • mandatory presence of the developer \u2013 acceptance must take place in the presence of both the buyer and the developer (or a representative of the developer), so the presence of the general contractor\u2019s representative is not sufficient \u2013 this is meant to protect against attempts by the developer to avoid accepting a list of defects from the buyer;<\/li>
    • possibility to send in the list of defects later \u2013 in the event of the buyer\u2019s refusal to sign the acceptance protocol due to defects found, the buyer does not have to comprehensively indicate all such defects in the protocol, but has 14 days to provide the developer with a list of defects, also by electronic means (to the e-mail address indicated in the information prospectus) \u2013 here the objective is to make it possible for the buyer to consult an independent technical expert;<\/li>
    • sanction for failure to meet the deadline \u2013 if the buyer fails to provide the developer with the list of defects within 14 days, acceptance must be carried out again, but this time, defects may be reported by the buyer only on the day of the second acceptance (this protects against further delays in the acceptance procedure).<\/li><\/ul>

      For developers, this change means in practice that the acceptance procedure will take longer. They should add some additional time in their schedules for the post-acceptance stage.<\/p>

      5. Unified definition of usable area<\/h2>

      The Draft Amendment introduces a new definition of \u201cusable area\u201d (of an apartment or house) into the Developer Act\u2019s glossary (Article 5 (13) of the Act). The new definition makes an explicit reference to \u201cusable area calculated for the purposes of designing a building within the meaning of the Act of 7 July 1994 \u2013 Construction Law.\u201d Consequently, the wording of Article 5a of the Act is also changed, by removing the existing reference to the Polish Standard (PN-ISO 9836).<\/p>

      This change is meant to address the discrepancy that exists in how usable area is calculated at different stages of the development process. Under existing law, situations may happen where the usable area of the same apartment or house is calculated differently for price-setting purposes (where the basis is the current Article 5a of the Developer Act, which refers to the Polish Standard) than for the purposes of preparing a building design (where the basis is the Regulation of the Minister of Development of 11 September 2020 on the detailed scope and form of the building design). The method from the current Article 5a of the Developer Act, i.e. the one based on the Polish Standard, permits the inclusion of e.g. balconies or terraces in the usable area of an apartment, thus affecting its price.<\/p>

      Unification of the definition means that the same method of calculating usable area will now be used, both at the stage of designing the building and at the stage of setting the price in the development agreement or obligatory agreement. Consequently, the Draft Amendment repeals point 15 of Article 35(1) of the Developer Act, which requires that the method used for calculating usable area shall be indicated in the development agreement. (It is not just that this provision will become unnecessary in view of the amended Article 5a. Left intact, it could justify the claim that a different calculation method than the one in Article 5 (13) is permissible.)<\/p>

      The change means that developers will have to review, and possibly update, their model development agreements and information prospectuses by removing references to the Polish Standard and replacing them with references to the relevant construction regulations, in particular the above-mentioned regulation on the scope and form of the building design. From the perspective of buyers, unification of the definition will eliminate interpretative doubts and increase the transparency of the price-setting process.<\/p>

      6. Quadruple refund of the reservation fee<\/h2>

      The Draft Amendment increases the refund of the reservation fee that the developer is required to provide to the buyer in case the developer fails to meet its obligations under the reservation agreement or fails to remove defects reported in the acceptance protocol, resulting in the buyer\u2019s refusal to sign a definitive purchase agreement (\u201cagreement to establish and\/or to transfer separate ownership of an apartment or a single-family house to the buyer\u201d), from the current two times to four times the reservation fee<\/strong> (changes to Article 34(2) and (3) of the Developer Act). The purpose of this change is to discourage the practice whereby some developers, in times of rising home prices, “walk away” from the reservation agreements or deliberately fail to perform them in order to sell to other buyers for a higher price.<\/p>

      7. Closed list of reasons for developer to withdraw from agreement<\/h2>

      The Draft Amendment establishes, in Article 43(7), a closed list of conditions entitling the developer to withdraw from a development agreement or definitive purchase agreement. Right now Article 43(7) of the Development Act mentions one circumstance in which the developer may withdraw, namely \u201cfailure by the buyer to perform a monetary benefit despite being summoned.\u201d The Draft Amendment adds a second reason: \u201cfailure by the buyer to show up to collect, or to sign, the notarial deed despite being summoned twice,\u201d and goes on to stipulate that withdrawal by the developer for any other reason will be ineffective. (It is a common interpretation of the current Article 43(7) of the Act that it spells out the most important, but not the exclusive reason under which it may be possible for the developer to withdraw from the agreement, and that it therefore does not preclude the inclusion, in the agreement, of other reasons of withdrawal by the developer.)<\/p>

      8. More audit powers for escrow banks<\/h2>

      In an important change from the point of view of developers\u2019 day-to-day operations, the Draft Amendment gives escrow banks more powers to carry out audits (changes to Article 17).<\/p>

      Right now, the escrow bank carries out an audit only upon the completion of a given stage of the housing project. The Draft Amendment introduces two types of audits: (1) audit of the developer \u2013 to be carried out before any payment of funds from the escrow account (and not only before payments tied to the completion of a project stage) and encompassing, among other things, verification whether the developer is not in arrears with its obligations towards buyers, contractors, the Developers\u2019 Guarantee Fund (DFG) and the Social Insurance Office (ZUS), and whether the developer has transferred the reservation fee to the escrow account; and (2) audit of project stage completion \u2013 to be carried out before a payment from the escrow account tied to the completion of a project stage.<\/p>

      In practice, this change means greater formalisation of the process of payments from escrow accounts, an increase in the number of documents required by banks, and a potential increase in the time that banks take to process payments from escrow accounts, which may have a direct impact on the financial liquidity of developers.<\/p>

      9. Information prospectus to include \u2018standard of finishing\u2019, DOM Portal to be expanded<\/h2>

      The Draft Amendment introduces significant changes to the model information prospectus attached to the Developer Act. The most important change is the introduction of a new mandatory section titled \u201cFinishing Standard,\u201d containing detailed information on the materials and technical solutions used in the residential unit (including e.g. walls, floors, window joinery, installations, heating) as well as in its associated rooms and in common areas. It will replace the current, voluntary and non-standardized \u201cFinishing standard card.\u201d The information provided in the mandatory \u201cStandard of finishing\u201d section will constitute basis for potential legal claims by the buyer against the developer in the event that the developer uses materials of lower quality than declared.<\/p>

      The Draft Amendment also expands the required contents of the section \u201cThe developer’s record and documented experience\u201d: the developer will have to disclose, among other things, the number of ongoing court proceedings involving the developer, information on debt enforcement proceedings for any amounts exceeding PLN 100,000 (approx. \u20ac23,600), the number of projects not completed on time, and the name of the parent company (in case the project is built by an SPV).<\/p>

      At the same time, the Housing Transactions Data Portal (DOM Portal) is to be significantly expanded by adding a database of information on developers. A developer\u2019s entry will include e.g. record of projects and delays, arrears in contributions to DFG, warnings from UOKiK, decisions on illegal constructions, or bankruptcy information. The portal is to serve as a public repository of all information on housing developers needed to assess their credibility.<\/p>

      10. Summary<\/h2>

      The Draft Amendment continues a regulatory trend in which the state is steadily increasing the protection of buyers at the expense of restricting the freedom of activity of developers. For developers, the following changes will be of key practical importance:<\/p>

      – ban on price increases after contract signing,<\/p>

      – unified method for calculating usable area,<\/p>

      – new rules on the liability of SPV shareholders and restrictions on SPVs\u2019 liquidation,<\/p>

      – less possibilities to withdraw from agreements,<\/p>

      – expanded audit powers of escrow banks,<\/p>

      – changes in the acceptance procedure.<\/p>

      Although the proposal is still in the public consultation phase and its final shape may change, the direction is clear. Therefore, developers should review, and prepare to adapt, their practices in areas including the legal structures used (in particular the SPV model), operating processes, model agreements, or pricing policy, so as to be ready when the amendment comes into force.<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t

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      \n\n\t\t\t\n\t\t\t\t\t\t\u00a9 Miller, Canfield, W. Babicki, A. Che\u0142chowski i Wsp\u00f3lnicy Sp. k.<\/span>\n\t\t\t\n\t\t\t\t\t\t