An outdoor dining area lease agreement is a standard document concluded in Poland in the case of leasing a catering establishment located on busy pedestrian routes or in city centres, where it is possible to physically separate and use the outdoor area adjacent to the premises. In such situations, an outdoor dining area can be an important addition to the premises’ operations in the spring and summer, allowing them to serve more customers and making the premises more attractive to customers, thereby increasing the potential to generate traffic and revenue from catering activities.
Although an outdoor dining area functions in practice as a ‘natural extension’ of the premises, in Polish law, from a legal point of view, in many cases it will constitute a separate subject of the lease agreement, requiring precise and independent regulation of legal issues in the agreement. Of course, in practice, it is also possible to conclude an annex to the catering premises lease agreement, including additional contractual provisions relating to the lease of space intended for a catering garden.
Regardless of which solution is adopted by the parties in practice, according to Polish law, the lease of an outdoor dining area should be precisely regulated in the lease agreement or an annex to the lease agreement, as the lack of precise contractual provisions can often lead to disputes between the lessor and the lessee. In particular, the lease agreement for an outdoor dining area should refer to the following issues:
– the period of use of the outdoor area,
– the location and size of the outdoor dining area,
– the rules for calculating the rent,
– the tenant’s cleaning obligations,
– the protection of the landlord’s legal and financial interests,
– the right to terminate the outdoor dining area lease agreement.
Period of use of the outdoor dining area
The period of use of the outdoor dining area should be specified in the lease agreement for the outdoor dining area in Poland (or in an annex to the lease agreement for the premises) in a manner that is unambiguous and does not give rise to any doubts as to interpretation for both the landlord and the tenant, so as to eliminate any risk of disputes. In Poland there are no top-down rules or statutory restrictions; as a rule, the parties have full contractual freedom and may determine the period of use of the garden in any manner they deem appropriate, tailored to the specific location, nature of the business and seasonality of customer traffic.
The rental of a restaurant garden is seasonal in nature, and therefore an example contractual provision in this regard may stipulate that:
‘During the term of the lease agreement, the lessor shall lease to the lessee the land area designated for an outdoor dining area for the period from 1 April to 30 September of each subsequent calendar year of the lease agreement.’
The outdoor dining area lease agreement in Poland may also provide for a flexible mechanism allowing for an earlier start or later end to the season, depending on weather conditions. This solution may, for example, only require the lessor’s consent in the form of an e-mail, rather than the conclusion of an annex to the agreement, which may be of practical importance as it will allow for a quick response to weather conditions or increased customer traffic without the need to amend the agreement each time and conduct time-consuming formal negotiations.
Determining the location of the outdoor dining area and its visual concept
Determining the location of the outdoor dining area and its visual concept is another important element of the lease agreement, which should be regulated in an unambiguous and detailed manner. The parties should precisely indicate where exactly the garden will be located in relation to the building, for example, whether it will be located directly next to the façade of the premises, in the pedestrian zone, in the inner courtyard or in another separate area adjacent to the property. Such a precise determination of the location is important not only for organisational reasons, but also for strictly legal reasons, in particular with regard to liability for the area and possible claims by third parties.
As a rule, arrangements regarding the location of the garden and its external appearance are made in the form of appendices to the lease agreement, which form an integral part thereof. Most often, these are site plans specifying the exact area occupied and a separate document containing the visual concept of the outdoor dining area.
It is in the interest of both the tenant and the landlord that the lease of an outdoor dining area in Poland is characterised by clearly defined rules for the use of the space and care for its aesthetics and functionality. The visual concept of the garden should take into account not only the overall appearance of the space, but also specific elements of the furnishings, in particular the type and style of furniture, decorative elements such as flowers or planters, as well as any temporary structures, including wooden platforms. In many cases, it may also be necessary to adapt the appearance of the garden to the prevailing style of the area in which the building is located, including conservation requirements, landscape resolutions or internal aesthetic standards adopted by the property owner.
From the point of view of the tenant’s legal security, it is crucial that the landlord explicitly accepts the visual concept of the garden specified in the appendix to the lease agreement. Explicit acceptance eliminates the risk of subsequent questioning of the appearance of the garden, demands for changes to the layout or claims of violation of the aesthetics of the building, and thus protects the tenant’s expenditure on the preparation and maintenance of the outdoor dining area.
An example contractual provision may read as follows:
“During the term of the lease agreement, the lessor shall lease to the lessee a land area adjacent to the premises outside the building with an area of 100 m2, marked on the attached plan constituting Appendix 1 to the lease agreement, for the purpose of creating and operating an outdoor dining area, and the tenant hereby accepts the area for lease.”
“As part of the rent for the area, the tenant shall be entitled to display and maintain equipment on the area, in particular furniture, flowers and a wooden platform in accordance with the visual concept of the garden constituting Appendix 2 to the lease agreement, consistent with the visual concept of the premises (the subject of the lease) and the building, including the prevailing style of the area in which the building is located. The Lessor hereby accepts the visual concept of the garden specified in Appendix 2.”
‘The parties agree that Appendix 1 to the lease agreement, i.e. the floor plan, and Appendix 2 to the lease agreement, i.e. the visual concept of the garden, form an integral part of the agreement.’
Rent for the restaurant garden and other costs
When deciding to conclude a lease agreement for an outdoor dining area in Poland, financial issues related to the venture will be crucial for the tenant, in particular the provisions concerning the rent. As a rule in Poland, the rent is set as a monthly rate per square metre of space made available, payable only for the period of actual use of the space, i.e. from May to September of a given year. Consequently, the agreement should explicitly exclude the obligation to pay rent for the remaining months (i.e. for the autumn and winter period) when the tenant does not use the garden. These provisions are intended to protect the tenant from incurring unreasonable costs for space that they do not use. However, if the parties agree that the restaurant garden can be used outside the standard season, the lease agreement may provide for settlement in proportion to the number of days of actual use.
An example of a contractual provision may read as follows:
“For the avoidance of doubt, in connection with the tenant’s non-use of the outdoor dining area in the period from 1 October to 30 April of each subsequent calendar year, subject to the following sentence, the parties agree that the tenant shall not be obliged to pay rent for the space in the period from 1 October to 30 April of each year of the agreement. The exemption referred to in the previous sentence shall not apply in the event of earlier commencement or later termination of use of the space. In such a case, for each incomplete month of use of the space in the period from 1 October to 30 April, the tenant shall pay rent in proportion to the number of days of actual use of the space in a given month.”
A particularly advantageous solution for the tenant will be the introduction of a clause exempting them from the obligation to pay rent in a situation where, for reasons beyond their control, they cannot use the outdoor dining area during the season, for example in the event of administrative restrictions, a ban on catering activities, temporary closure of the garden by Polish authorities or other administrative restrictions in Poland, construction works preventing the use of the garden, or force majeure.
The outdoor dining area lease agreement in Poland should also comprehensively address issues related to the arrangement and equipment of the outdoor dining area. As a rule, these costs are borne by the tenant.
A practical example from Polish case law:
“In particular, it should be noted that in a situation where the defendant received a decision specifying the possibility of locating an outdoor dining area on the plot adjacent to the leased premises, and the parties did not include any provisions in the agreement regarding rent for the location of the garden, it cannot be concluded otherwise than that the parties had agreed that the claimant consented to the defendant’s location of the outdoor dining area without charging any fees for this” (judgment of the Polish District Court in Kielce of 5 March 2025, 5th Commercial Division, file ref. no. V GC 1415/24).
It is in the landlord’s interest that the outdoor dining area lease agreement imposes on the tenant all costs of arrangement, ongoing maintenance and dismantling of equipment after the end of the period of use of the outdoor dining area. Of course, the agreement should exempt the tenant from cleaning and maintenance obligations during periods when they are not entitled to use the space.
The tenant should also be obliged to maintain the aesthetic appearance of the garden and ensure the cleanliness and tidiness of the area, as the outdoor dining area is part of the common area and affects the image of the property and the comfort of its users.
Security for the landlord (deposit and declaration of voluntary submission to enforcement)
The outdoor dining area lease agreement should also adequately protect the Lessor’s legal interests. Standard safeguards used in this type of agreement include a contractual deposit mechanism and declarations of voluntary submission to enforcement.
According to Polish regulations, a contractual deposit is an amount paid by the tenant into the landlord’s bank account and serves to secure the landlord’s claims, in particular for unpaid rent, additional fees, contractual penalties and any damage caused in connection with the use of the outdoor dining area. The amount of the deposit may be set, for example, at three times the monthly rent. The landlord should have the explicit right to deduct from the deposit any outstanding payments under the lease agreement and to cover any due and payable amounts arising from non-performance or improper performance of the lease agreement. The deposit should be returned to the tenant in its nominal amount after deducting any amounts due for rent, advance payments, other fees, contractual penalties and other amounts due to the landlord from the tenant under the lease agreement within, for example, 3 months from the date of termination or expiry of the lease agreement and the formal handover of the premises to the landlord.
The tenant should also agree in the lease agreement to submit to enforcement pursuant to Article 777 § 1 points 4 and 5 of the Polish Code of Civil Procedure by undertaking to submit to the landlord (no later than on the date of handing over the garden) a notarised statement of voluntary submission to enforcement. This statement should include:
- the obligation to return the premises, for example within 3 days of the expiry or termination of the lease agreement, and
- the obligation to make monetary payments under the lease agreement up to the amount agreed by the parties, for example three times the rent.
This security measure is intended to strengthen the protection of the landlord’s interests, in particular by enabling the rapid pursuit of monetary claims and the efficient recovery of the premises after the expiry or termination of the lease agreement, without the need for lengthy court proceedings. By submitting to enforcement under Article 777 of the Polish Code of Civil Procedure, the landlord may directly apply for an enforcement clause to be attached to the notarial deed and initiate enforcement proceedings, which significantly reduces the risk of rent arrears and non-contractual use of the premises by the tenant. At the same time, the parties should specify the date by which the landlord will be entitled to apply for an enforcement clause to be attached to the notarial deed, and this date should be at least 6 months after the end of the lease term.
The agreement should also provide for the consequences of failure to submit the above-mentioned statement, for example by allowing the lessor to impose a contractual penalty on the lessee, as well as the lessor’s right to terminate the garden lease agreement without notice.
Right to terminate the lease agreement for a restaurant garden
The lessor should also have the right to terminate the lease agreement for a restaurant garden without notice (i.e. ‘immediately’) in the event of material breaches of its provisions by the lessee. These provisions may be directly linked to the provisions of the main agreement, i.e. the agreement for the lease of premises or space in a building, in particular by referring to the rules of termination, payment deadlines and the consequences of delays in payment specified in the lease agreement.
In general, in Poland, the landlord should have the right to terminate the lease agreement, in particular if the tenant:
- is in arrears with rent payments (e.g. for at least two months) and fails to settle the arrears within one month of receiving an additional written request for payment from the landlord,
- is in arrears with the payment of common service charges, for example, for at least two months, and fails to settle these amounts within the same period of one month from the date of receipt of an additional written request for payment,
- changes the use of the outdoor dining area without the landlord’s consent, for example by conducting activities other than catering, using the outdoor dining area in a manner inconsistent with the approved design, introducing permanent changes to the infrastructure, such as the construction of gazebos, canopies or temporary structures that have not been previously approved by the landlord,
- make the garden available to third parties for commercial purposes,
- fail to pay/submit the security referred to in the above point, i.e. the deposit and the declaration of voluntary submission to enforcement, within the prescribed time limit.
Summary
A restaurant garden lease agreement in Poland is a legal document regulating the use of outdoor space adjacent to a restaurant and should be comprehensive and unambiguous in order to eliminate potential disputes between the landlord and the tenant. A well-drafted outdoor dining area lease agreement should combine a clear definition of the rights and obligations of the parties, mechanisms to protect the interests of the lessor, and flexible practical solutions enabling the lessee to use the outdoor dining area effectively and without conflict, while minimising the risk of disputes and loss of value of the premises or adjacent area.
Can the tenant determine the hours of use of the garden on their own?
No, the hours of use should be specified in the agreement to avoid disputes with the landlord and possible claims from neighbours. The agreement may also provide for flexible hours during the high season, provided that the changes are approved by the landlord each time. This is certainly a sensitive issue that should be regulated in detail in the contract.
Is it possible to sublet the garden to third parties?
Subletting under a lease agreement generally requires the landlord’s consent in writing, and failure to obtain such consent may constitute a breach of the agreement and grounds for its immediate termination. In practice, the agreement may also specify the conditions under which subletting is permitted, e.g. for special events, subject to time limits and number of persons, as well as the requirement to comply with safety and order rules.
Can the tenant carry out modernisation works in the garden on their own?
No, any modernisation work requires the landlord’s consent, especially if it concerns permanent structures or directly interferes with the property. The agreement may specify which works may be carried out independently by the tenant (e.g. furniture arrangement, plant decorations) and which require the landlord’s written consent.
Can the landlord require insurance for the garden?
Yes, the agreement may stipulate the obligation to insure the garden restaurant against damage caused to third parties or random events. The insurance may cover both the tenant’s property (furniture, equipment) and civil liability for damage caused to third parties. The landlord may also require the tenant to present the insurance policy before the start of the season.
Can the garden be rented for a short period or at non-standard hours?
Yes, a catering garden lease agreement may provide for flexible terms, e.g. weekend, hourly or special event rentals. It is important that the agreement clearly specifies the terms of use, rent settlement and the tenant’s liability for damage. In addition, provisions may be included regarding the need to obtain the landlord’s consent for the organisation of events or increased traffic in the garden.
What rights does the tenant have in the event of closure of the premises due to administrative regulations?
Depending on the provisions of the contract, the tenant may be exempt from the obligation to pay rent or have the right to a proportional reduction. In addition, the contract may provide for the possibility of extending the lease period after the resumption of business or compensation for the costs incurred for the arrangement and equipment of the garden during the period when it cannot be used. It is important that the agreement includes a provision specifying the situations that are considered circumstances excluding the tenant’s liability for rent obligations.
