Agreement between a developer and a real estate agent in Poland – what is worth knowing?

In Poland, an agreement between a developer and a real estate agent is an agreement between the developer and the real estate agent operating on the Polish property market. The developer acts as the entity behind an investment project involving the construction of a property for sale, while the real estate agent acts as an expert in the property market, capable of conducting sales and marketing activities and providing customer service in an effective and professional manner.

In many cases, the agreement between a developer and a real estate agent can play a fundamental role in the effective commercialisation of a development project, which is why developers often enter into such agreements at the early stages of a project. An effective partner in the form of a professional estate agent can significantly accelerate the process of selling premises, reach a wider group of potential buyers and provide support in marketing and customer service. As a rule, in Poland, the fundamental purpose of the agreement should be to regulate as precisely as possible the terms of cooperation between the investor and the agent acting as a sales specialist, who searches for buyers of premises on behalf of the developer and supports the transaction process.

Although it may seem that an agreement between a developer and an agent is a standard document, our experience shows that this is often not the case, and the mutual obligations of the parties are shaped on many levels and concern a number of practical issues. The details of the agreement may be of key importance for the legal security of both parties – the investor and the agent – and, given the potential risks associated with imprecise definition of individual obligations or remuneration, precise and well-thought-out contractual provisions will be essential for efficient and secure cooperation.

In this article, we discuss the main provisions of an agency agreement concluded between an agent and a developer in Poland in the context of the sale of residential and commercial premises as part of a development project. We will present in detail what a professional agreement between a developer and a real estate agent should contain, what to pay attention to when drafting it, and what legal mechanisms can be implemented to protect the interests of both parties.

Agreement between a real estate agent and a developer in Poland – obligations of a real estate agent

The basic obligation of a real estate agent will be to actively acquire clients interested in purchasing residential (or commercial) premises from the developer’s offer. It seems that, especially in the case of large, multi-stage development projects, it is crucial for the real estate agent to have precise information about the premises covered by marketing and sales activities. This may also be particularly important when the development is handled by several estate agents, and therefore the cooperation between the developer and the agents is non-exclusive. The list of premises may constitute an appendix to the agreement, forming an integral part of the agreement, which in practice means that the provisions of the appendix will have the same legal force as the other provisions of the ‘main agreement’.

The developer should also be obliged to immediately inform the agent of the suspension of the availability of a given property for the purposes of the agreement with the agent. This allows the agent to adjust their sales activities on an ongoing basis and avoid offering properties that are no longer available because they have been reserved or sold. This mechanism will be beneficial for both parties: the agent gains full knowledge of the developer’s current offer, while the developer retains full control over the investment resources. Precise regulation of this aspect in the agreement will help minimise the risk of conflicts and improve day-to-day cooperation.

When can an agent demand a commission for referring a client to a developer in Poland?

The agreement between the agent and the developer should precisely define the rules for providing the contact details of a potential buyer of the property. This is an important provision that protects the interests of both parties and minimises the risk of subsequent disputes regarding the source of the client and, consequently, whether the agent is entitled to remuneration.

As a rule, in Poland, an agent is entitled to claim remuneration if they can document that they brought the client into contact with the developer, which resulted in the conclusion of a reservation or development agreement.

A practical example from Polish case law:

“An agent acquires the right to remuneration only if the conditions created by him lead the interested parties to conclude the main contract” (the Polish Supreme Court judgment of 8 May 2015, ref. no. III CSK 346/14).

One practical solution in Poland to this issue may be to stipulate that when an agent finds a potential buyer, they will be required to provide the developer with detailed information about that customer (usually by e-mail). This information should be complete and tailored to the type of customer:

• in the case of a natural person – the agent should provide their first and last name, PESEL number and address of residence,
• in the case of a legal person – the agent should provide the company name and KRS / NIP number.

The developer will then have a period of time, for example 3 days, to raise any objections and confirm that they knew the customer previously, e.g. through conversations or negotiations with them. In order to avoid the obligation to pay remuneration, the developer will then be required to provide the agent with evidence in the form of electronic correspondence with the customer, dated earlier than the moment when the agent provided the customer’s data. In this way, they will prove that the commission is not due to the agent. However, if the developer does not have such evidence, the agent will be entitled to remuneration.

This solution will therefore make it clear that it was the agent who was the source of contact with the potential buyer, performing their contractual obligations, and that they are therefore entitled to remuneration. This will protect the agent from a situation where the developer could question the fact that the client was acquired by the agent or claim that the client was already known to the developer. As a result, this will minimise the risk of disputes and possible claims regarding commission, which, in our experience, are among the most common disputes in contracts between developers and estate agents.

Agreement between a real estate agent and a developer in Poland – commission or mixed remuneration

The agreement between the agent and the developer should clearly state that the agent acquires the right to a commission if they bring about the conclusion of one of the key agreements with a potential buyer presented by the agent. In practice,in Poland, this most often involves:

• a reservation agreement,
• a development agreement,
• a preliminary sale agreement,
• an agreement transferring ownership.

It is important to precisely define who is a ‘potential buyer introduced by the agent’. To this end, provisions verifying whether the developer knew this person beforehand and the obligation to provide evidence of prior contact, as referred to above, may be applied.

The amount of remuneration may be determined as a percentage of the sale price of the property, although other forms of remuneration may also be agreed, such as mixed remuneration (e.g. a fixed fee plus a sales bonus). Imprecise wording of the settlement rules may lead to serious misunderstandings, so the agreement should also clearly specify whether, for example, a 3% commission means 3% net (plus VAT) or 3% gross. It is crucial that the method and amount of remuneration are clearly and precisely defined in the agreement, which prevents subsequent misunderstandings and facilitates settlements between the developer and the agent.

Agreement between a real estate agent and a developer in Poland – the developer’s obligations

In order for the agent to properly perform their sales and marketing obligations, it is also crucial to specify and list the specific obligations incumbent on the developer. It is obvious that without the developer’s involvement, the proper performance of the agent’s obligations will be significantly impeded or even impossible.

Below we present what we consider to be the most important obligations of the developer that should be included in the agreement between the developer and the agent, although of course the following list is not exhaustive:

Providing necessary information and documents concerning the property

In Poland, the developer should undertake to provide the agent with all information necessary for the proper conduct of sales activities. This includes, among other things:

• architectural plans and land development plans, which will enable potential customers to present the investment and show what the final design of the investment will look like,
• visualisations of the investment and marketing and advertising materials, which will help to build an attractive image of the offer and in marketing communication with potential customers,
• finishing standards for premises and common areas; it is obvious that for potential buyers, knowing what to expect after the purchase is crucial,
• the investment implementation schedule, including the expected dates of completion of individual stages and transfer of ownership of the property, which will help customers plan their purchase and arrange financing,
• terms and conditions of sale of premises, including price lists, available discounts, promotions, as well as information on financing options for the investment.

Providing access to the property for presentation purposes

The developer should allow the agent access to the premises covered by the investment, which is crucial for the effective presentation of the offer to potential buyers. These obligations should include:

–    making show flats and the construction site available on agreed dates,

–    providing the agent with keys, access cards or other means necessary to present the property,

–    ensuring that the show flats are properly prepared in terms of accessibility, aesthetics and safety during customer visits, so that presentations to potential buyers can be conducted in conditions that meet market standards and customer expectations.

Marketing of the development project

In order to increase sales effectiveness, the developer may also undertake to take specific promotional measures. As part of such cooperation, the developer may undertake or express willingness, for example, to:

• finance advertising campaigns, including activities in social media, local or national press and on the Internet,
• preparing and printing promotional materials, such as investment catalogues, leaflets, roll-ups, banners and other sales support materials,
• organising open days, promotional events and meetings with potential buyers, in cooperation with the agent,
• ensuring the presence of the investment on selected advertising and industry portals, increasing the visibility of the offer on the market,
• cooperating closely with the agent in the planning and implementation of promotional activities, including agreeing on their scope and content,
• running dedicated social media channels and an investment website to provide information on progress and the current offer,
• covering the agreed costs of advertising carried out by the agent, subject to prior approval of the scope and budget of these activities by the developer.

The parties may also supplement the above arrangements with more precise mechanisms to maximise the transparency of cooperation, concerning, for example:

• approving promotional plans and marketing schedules,
• requiring written or email approval of costs before they are incurred,
• setting maximum budget limits for specific activities,
• rules for accounting for expenses and documenting costs incurred (e.g. invoices, cost statements or periodic reports).

Active participation in the sales process

The developer may also actively cooperate with the agent to achieve joint sales success. Basic obligations may include:

• providing access to the CRM system or other sales platform, if such a system is in place on the developer’s side,
• co-organising meetings and presentations for potential customers/open days for the investment,
• making the developer’s representatives available to participate in negotiations, if the agent requests it,
• promptly responding to questions from the agent and customers regarding the terms of sale and the legal and technical condition of the property,
• appointing a contact person on the developer’s side responsible for cooperation with the agent.

Of course, these obligations may be broader in nature and tailored to the specifics of a given investment and the model of cooperation with the agent. As a rule, in Poland, however, developers engage in marketing activities, create sales materials, participate in industry events or provide additional technical support, which significantly increases the effectiveness of the entire sales process. The agreement for the sale of development properties should therefore directly address these issues.

Ongoing information about changes in the investment

The agreement between the developer and the agent is bilateral, which means, among other things, that the developer also has certain information obligations towards the contractor. First of all, the developer should also keep the agent informed of any significant changes concerning the investment, such as:

• updates to price lists and availability of premises, which may include, among other things, price increases or decreases, the introduction of promotions, discounts or the withdrawal of premises from the offer,
• changes in financing terms and payment methods, new credit options, instalment plans, payment schedules or other facilities for buyers that may influence the purchase decision,
• modifications to the investment implementation schedule,
• changes in legal and technical documentation, which applies to any design changes, administrative decisions, permits or updates to finishing standards and building materials.

Regular updates of this information will certainly contribute to the perception of the agent as a professional entity and, as a result, should increase the effectiveness of the entire sales process. It will also help to avoid misunderstandings with customers and minimise the risk associated with providing outdated or incomplete information.

Timely notification of the conclusion of agreements with buyers

The developer should also undertake to inform the agent (e.g. no later than within 3 days) about the conclusion of key agreements by a potential buyer, such as a reservation agreement, a development agreement, a preliminary agreement or a transfer of ownership agreement. The agent then acquires a claim for payment of remuneration.

Practical example from Polish case law:

“In accordance with the agreement concluded by the parties, the remuneration due to the claimant was payable on the basis of invoices issued by the claimant, after prior notification to the developers by e-mail of the contractors obtained. The developer was obliged to inform the claimant if the contractor she notified was listed in its customer database, and in the absence of such information, the contractor notified by the claimant was considered by the parties to have been recommended by the claimant.” (judgment of the Polish Regional Court in Warsaw, XXIII Commercial Appeals Division, of 6 September 2019, ref. no. XXIII Ga 278/19).

Acting in good faith and cooperation

The parties to a contract between a developer and an agent may also decide to introduce so-called soft provisions, i.e. provisions that are not binding but express intention, goodwill and openness to cooperation. For example, they may concern:

– a declaration of mutual support in marketing activities,

– preferential treatment of the agent in the case of new stages of the investment,

– announcements of regular meetings to discuss sales progress.

Although such provisions do not have legal consequences in the event of non-performance, they play an important relational and communicative role – they build trust and can foster long-term, stable cooperation.

Cooperation agreement between a developer and a real estate agent in Poland – term and conditions of termination

As a rule, in Poland, an agency agreement is concluded for a fixed term, which begins on the date of conclusion of the agreement and lasts until the date specified in the agreement, for example until the completion of the sale of premises at a given stage of the investment.

An important element of the cooperation agreement between the developer and the agent in Poland is also the possibility of terminating the agreement with immediate effect if one of the parties commits a gross breach of its provisions. As a rule, in Poland, this right will be available to a party when the other party breaches its obligations and further cooperation is not possible, for example, the developer regularly fails to pay commission or the agent systematically fails to provide reliable information to potential buyers of premises.

Importantly, termination of the agreement does not release the parties from the obligation to settle accounts for services provided until its termination. This means that the agent retains the right to remuneration for the activities performed so far, which provides him with economic protection even in the event of premature termination of cooperation.

Agreement between a developer and a estate agent in Poland – copyrights

When implementing an investment project, developers very often produce a variety of marketing materials themselves, which are intended to effectively present the offer to potential customers and increase the recognition of the investment on the market. The materials most often prepared by developers include catalogues, prospectuses and information brochures. These materials may be used by the agent. Therefore, as part of the cooperation between the developer and the agent, it is very important to regulate the issue of copyright to all materials and studies created during the performance of the contract. The correct definition of these rights protects the interests of both parties and ensures that the developer can freely use the results of the agent’s work.

Agreement between a developer and a estate agent in Poland – transfer of personal data

The agreement should also include provisions on the processing of personal data in accordance with the provisions of the GDPR. Already at the stage preceding the conclusion of the agency agreement, the agent may transfer the personal data of potential buyers to the developer. If the agent intends to transfer the personal data of a potential buyer to the developer, they are required to obtain the explicit consent of that person for the transfer of their personal data for this purpose. This consent should be given voluntarily, consciously and unambiguously, preferably in writing or in documentary form.

It is therefore necessary to clearly define the roles of the parties (controller or processor), the scope of data processing, and the information and security obligations that should be implemented to ensure compliance with applicable regulations.

Agreement between a developer and a estate agent in Poland – summary

A contract for the sale of developer properties is a key document governing the terms of cooperation between the developer and the agent in the sale of premises in development projects. Although it may seem like a straightforward document, if its wording is imprecise, it can cause a number of complications and legal problems.

It is therefore important for both parties to the agreement that the document reflects their business arrangements and is worded in such a way as to minimise the risk of differing interpretations, which should ensure smooth cooperation. The parties should also bear in mind that a well-drafted agreement not only protects the interests of the developer and the agent, but also streamlines the sales process, which is in the interest of both the developer and the agent.

The article discusses in detail what a professional contract for the sale of development properties should contain, how to avoid mistakes when drafting it, and what legal mechanisms should be included in it to ensure that the cooperation is safe, transparent and effective.