The most common problems in flat rental agreements for tenants – legal guide

Renting a flat in Poland may seem like a straightforward process, but in practice, tenants often encounter problems related to actions taken by landlords that frequently violate tenants’ rights. These actions often contradict the provisions of the Polish Act of 21 June 2001 on the protection of tenants’ rights, municipal housing resources and amendments to the Polish Civil Code  (hereinafter: the Act), which protects the legal interests of tenants. What is more, tenants themselves, who are often foreigners, are unaware of tenant rights in Poland and passively submit to the unlawful actions of landlords.

In our experience, the most common problems related to tenancy agreements and disputes with landlords in Poland include situations where:

1. the landlord refuses to return the rental deposit (in whole or in part),
2. the landlord increases the rent unreasonably (both in terms of the frequency and amount of the increases),
3. the landlord enters the rented property unlawfully, violating the tenants’ privacy,
4. the landlord terminates the lease agreement without legal grounds or in violation of the provisions of the Act.

The purpose of this guide is to explain the applicable legal provisions to tenants and to indicate practical ways of resolving the situations described above. This will make tenants more aware of their rights, enabling them to protect them more effectively and minimise the risk of landlord-tenant disputes.

Polish landlord does not want to return the deposit

The most common problem we encounter in practice is when a Polish landlord refuses to return the deposit after the lease agreement in Poland has expired. Regardless of the reasons – whether it is alleged damage to the premises, arrears in payments or disputes over the amount of deductions – this situation often leads to conflicts between the parties and requires knowledge of the law and procedures enabling the tenant to recover the deposit. It is also clear that tenants should not leave such situations unresolved, as in many cases the deposit should be returned to them in full, and the landlords’ actions are directly contrary to the law.

Deposit in a tenancy agreement in Poland – legal regulations

When concluding a tenancy agreement in Poland, it is standard procedure for the landlord to collect a deposit on the day the tenancy agreement is concluded. This mechanism is intended to protect the financial interests of the landlord and is in accordance with Article 6(1) of the Act, according to which the deposit may secure claims arising from the lease of the premises, in particular:

–    any rent arrears,

–    compensation for damage to equipment, or

–    costs of restoring the premises to their original condition.

However, pursuant to Article 6(4) of the Act, in Poland the deposit is refundable within one month of the date of vacating the premises or acquiring ownership thereof by the tenant, after deduction of the landlord’s claims in respect of the lease of the premises. In practice, this means that the landlord should return the deposit within one month, unless they consider that there are rent arrears or that it is necessary to compensate for damaged equipment in the premises from the deposit.

Handover protocol for the lease agreement

The technical condition of the premises is reflected in the handover protocol, which is generally drawn up by the parties to the lease agreement, both when the flat is handed over to the tenant and when it is returned to the landlord. The handover protocol for the premises should indicate:

–    the technical condition of the premises and its equipment,

–    any defects and deficiencies in the equipment,

–    the degree of wear and tear/damage to the equipment,

–    the status of meters (electricity, gas, water, heat),

–    the signatures of both parties (the landlord and the tenant).

If, at the time of returning the premises, the landlord signs the report ‘without reservations’ as to the condition of the premises, this means, as a rule, that there are no grounds for making a deduction from the deposit, which should be returned to the tenant in full, i.e. the amount paid when concluding the tenancy agreement.

However, if the parties sign a handover report ‘without reservations’ and the landlord subsequently claims that there is damage, the landlord is then obliged to prove that it occurred during the tenancy and was caused by the tenant. Our experience shows that in practice this can be extremely difficult, and Polish courts generally do not believe the landlord. If the defects actually existed on the day the premises were returned, the landlord should have ensured that the report took them into account.

Therefore, it is in the tenant’s interest to ensure that the handover report is drawn up in as accurate and reliable a manner as possible. We also recommend that appropriate photographic documentation of the leased property be prepared both at the stage of handing over the premises to the tenant and when returning them to the landlord. This will allow the tenant to assert their rights in a situation where a Polish landlord refuses to return the deposit, citing alleged damage to the premises.

Retention/deduction of the deposit by the landlord – what expenses can the landlord deduct?

In the event of actual damage to the rented property, the landlord may only deduct documented amounts due under the rental agreement in Poland from the deposit. Therefore, any amount deducted from the deposit should be supported by receipts, invoices or other proof of expenditure. If the landlord fails to provide such documents, the tenant may effectively demand a full refund of the deposit. In other words, in Poland the landlord cannot claim that they incurred a cost of PLN 1,000 for ‘repairing damage to furniture’ if there was no damage and they cannot document it with relevant documents.

Importantly, receipts and invoices must reflect market prices for services rendered or materials purchased, and not inflated costs, as only expenses commensurate with the actual value of repairs or services may be deducted from the deposit. If the landlord presents inflated or unjustified documents, the tenant has the right to question such deductions and demand the return of the entire deposit together with any interest. For example, the landlord cannot deduct PLN 1,000 for replacing a door handle in the premises, as this amount does not correspond to the market price of a door handle.

Normal wear and tear of the flat and the tenant’s liability in Poland – when the deposit cannot be retained

Pursuant to Article 675 § 1 of the Polish Civil Code, at the end of the lease, the tenant is obliged to return the property in an undeteriorated condition; however, they are not liable for wear and tear resulting from normal use. Undiminished condition, within the meaning of this provision, is the condition in which the leased property was at the time of its delivery to the tenant, with the proviso that traces of wear and tear on the flat are permissible. For example, it seems that wear and tear on the surface of floor panels due to the tenant walking on them will not constitute excessive wear and tear of the premises, but will be a consequence of typical and normal use of the panels in the premises. It is impossible to use the panels without wearing them down. Of course, it is worth mentioning that each case may be different, and the term ‘undamaged condition’ requires a separate assessment in each case.

Consequently, unless the parties have agreed otherwise, natural signs of wear and tear resulting from normal use of the premises in accordance with their intended purpose cannot constitute grounds for deductions from the deposit. Therefore, the landlord cannot retain the deposit or make deductions on the basis of minor damage resulting from the proper use of the flat. Importantly, the burden of proving the validity of the deduction rests with the landlord, so it is the landlord (and not the tenant) who must prove that the tenant used the premises improperly and caused damage.

A practical example from Polish case law:

‘If the tenant returns the property in a deteriorated condition, they may be released from the obligation to repair the damage if they prove that the deteriorated condition (of the premises) is justified by normal wear and tear’ (judgment of the Polish Supreme Court – Civil Chamber of 11 May 1999, file ref. no. I CKN 1304/98).

The landlord increases the rent unreasonably

First of all, it should be noted that under Polish law even if the lease agreement does not contain provisions regarding the landlord’s right to increase the rent, the landlord is still entitled to do so. This is precisely regulated by the provisions of the Act, which allow for increases, but not in an unlimited manner. 

How often can the owner of the premises increase the rent in Poland?

Pursuant to Article 8a of the Act, the owner of the premises may increase the rent or other charges for its use by changing their current amount. However, rent increases or other charges for the use of the premises, with the exception of charges independent of the owner, may not be made more frequently than every 6 months. This period runs from the date on which the increase took effect. Consequently, increasing the rent every month, for example, would be against the law.

Furthermore, any increase must be notified at least three months in advance, unless the parties have agreed on a longer period in the lease agreement, and should be made at the end of the calendar month at the latest. For example, if the landlord wants the new rent to take effect on 1 October, they should give the tenant notice by the end of June at the latest. Increases made without observing this deadline or in a manner inconsistent with the agreement may be challenged by the tenant.

How much can the rent for a property be increased?

in Poland the rent for a property cannot be increased arbitrarily, which means that the landlord cannot set the rent at their own discretion, without a basis in the contract or legal regulations. For example, if the tenant has been paying PLN 2,000 per month, the Polish landlord cannot suddenly increase the rent to PLN 3,500. The law limits the amount of increases, which tenants are often unaware of.

Firstly, the landlord may index the rent by the GUS index, i.e. by an amount not exceeding the average annual index of consumer prices for goods and services in the previous calendar year (inflation index) in a given calendar year.

Secondly, a rent increase should not lead to an increase of more than 3% of the replacement value of the premises. In practice, this means that it is necessary to calculate the replacement value, which is the product of the usable area of the premises and the conversion index for the replacement cost of 1 square metre of usable area of a residential building. To calculate the maximum permissible increase, multiply the index set for a given province by the number of square metres of usable floor space of the premises. This index is published every six months by the provincial governor and is usually available on the websites of the infrastructure departments of individual provincial offices.

An increase higher than 3% may only occur in justified cases provided for in the Act, for example when the owner does not receive income from rent or other charges at a level sufficient to cover the costs of maintaining the premises, ensure a return on capital and make a profit. In this way, the regulations protect the tenant against excessive and unjustified rent increases.

What can a tenant do in Poland if they do not agree to a rent increase?

The tenant has the right to refuse an unjustified rent increase. In such a case, they may request the landlord to provide written reasons and calculations for the increase. The Polish landlord has 14 days from the date of receipt of the request to do so, and if they fail to respond, the increase is considered invalid. In addition, the tenant has two months from the delivery of the notice of rent increase to submit a written refusal to accept the increase.

If the increase is refused, the lease agreement is terminated within three months from the last day of the month in which the notice was delivered. Until the agreement is terminated, the tenant pays the rent at the current rate.

The tenant may also file a lawsuit in court to determine that the increase is unjustified or too high. In such cases, the burden of proof, i.e. demonstrating the validity of the increase, rests with the owner, not the tenant. Until the proceedings are legally concluded, the tenant pays the rent at the current rate. In practice, however, this solution is ineffective in most cases and rarely used, as disputes of this kind are time-consuming, require expert opinions and often last longer than the lease period itself. For this reason, many tenants decide to negotiate with the landlord or terminate the agreement and look for new accommodation.

The landlord unlawfully enters the rented flat

Illegal entry by the landlord into the flat is a situation that occurs quite often in practice. Tenants often think that the landlord has the right to enter the rented premises at any time because he is the owner. This conclusion may be particularly true in the case of arrears in payments or the existence of (alleged) defects. However, the Polish legal system clearly protects the inviolability of the flat and the tenant’s right to undisturbed use of the rented premises.

When can a landlord legally enter a rented property?

The Polish law clearly specifies when the owner may enter the rented premises without the tenant’s consent and in their absence. These are exclusively situations where a failure occurs that causes damage or directly threatens to cause damage, such as fire, gas leak, flooding of the premises, etc. If, in such a situation, the tenant does not allow the owner to enter the flat or is absent from the premises, the landlord has the right to enter the flat in the presence of the police, municipal police or fire brigade.

In addition, the tenant must make the premises available to the landlord when:

• the landlord wants to visit the flat to carry out a periodic inspection of the condition and technical equipment of the premises and to determine the scope of necessary work and its implementation,
• in order for the owner to carry out work on behalf of the tenant.

However, such visits may only take place after a date has been agreed between the parties.

These are the only cases in which the landlord may, as it were, ‘force’ the tenant to open the door and let him into the premises.

The tenant’s right to undisturbed use of the premises and protection of the inviolability of the flat

In other circumstances, however, the landlord cannot voluntarily demand to be let into the premises, even if he has given the tenant adequate notice. By entering into a tenancy agreement, the tenant gains the right to undisturbed use of the premises and, with it, among other things, the right to protection of the inviolability of the dwelling.

Importantly, the right to undisturbed use of the premises and protection of the inviolability of the home are granted to the tenant regardless of any arrears in payment. In such situations, the owner must use the procedures provided for in the law, e.g. by pursuing claims in court or through eviction proceedings, instead of forcing access to the home on their own.

Violation of domestic peace by the landlord in Poland

What to do if the owner enters the flat without permission? The unlawful entry of the owner into the tenant’s flat may constitute a crime of violation of domestic peace as defined in Article 193 of the Polish Criminal Code, according to which: anyone who breaks into another person’s house, flat, premises, room or fenced area, or refuses to leave such a place despite the request of the person entitled to do so, shall be subject to a fine, restriction of liberty or imprisonment for up to one year. In a situation where the owner of the premises unlawfully enters the flat, the tenant should take several steps to protect their rights:

1. first of all, clearly ask the owner to leave the premises, informing them of their obligation to respect the right to undisturbed use of the flat,
2. document the situation, e.g. by recording conversations, taking photographs or obtaining witness statements, which may prove important if the case is reported to the law enforcement authorities,
3. if the owner still does not leave the flat despite the request, the tenant should report the matter to the police, citing a violation of domestic peace.

A practical example from Polish case law:

‘As a result, a flat that has been rented out or transferred, e.g. for life use, becomes a “foreign” place for the owner, as they have transferred some of their rights to other persons’ (the Polish Supreme Court ruling of 21 July 2011, ref. no. I KZP 5/11, OSNwSK 2011, No. 8, item 65).

‘The perpetrator of the crime of trespassing within the meaning of Article 193 of the Criminal Code may also be the owner of a house, flat, premises, room or fenced area’ (decision of the Polish Supreme Court – Criminal Chamber of 21 July 2011, I KZP 5/11).

The landlord terminates the lease agreement without grounds or in violation of the provisions of the Act

In order to discuss this issue, it should first be noted that the termination of a fixed-term and indefinite lease agreement requires a separate approach, as the provisions of the Act and the Polish Civil Code provide for different rules depending on the type of agreement.

Tenancy agreement for an indefinite period in Poland

With regard to the lease of premises for an indefinite period in Poland, Article 688 of the Polish Civil Code  specifically regulates the notice period for termination of the agreement, stipulating that if the duration of the lease is not specified and the rent is payable monthly, the lease may be terminated at the latest three months in advance at the end of the calendar month.

In addition, the landlord has the right to terminate a lease agreement concluded for an indefinite period only for reasons specified in the Act, i.e.:

No later than one month in advance, at the end of the calendar month, the owner may terminate the legal relationship if the tenant:

• despite a written warning, continues to use the premises in a manner contrary to the agreement or contrary to its intended purpose, or neglects their obligations, allowing damage to occur, or destroys equipment intended for shared use by residents, or grossly or persistently violates house rules, making the use of other premises burdensome, or
• is in arrears with the payment of rent, other fees for the use of the premises or fees independent of the owner charged by the owner only in cases where the tenant does not have a contract directly with the utility or service provider, for at least three full payment periods despite being notified in writing of the intention to terminate the legal relationship and setting an additional monthly deadline for payment of outstanding and current amounts due, or
• has rented, sublet or given the premises or part thereof for free use without the required written consent of the owner, or
• uses premises that need to be vacated due to the necessity to demolish or renovate the building, subject to Article 10(4).

The owner of the premises may also terminate the tenancy agreement with:

• six months’ notice, due to the tenant not residing there for a period longer than 12 months;
• one month’s notice, at the end of the calendar month, to a person who has legal title to another premises located in the same or a nearby town, and the tenant may use these premises if they meet the conditions for replacement premises.

In practice, however, these circumstances are extremely rare.

Fixed-term tenancy agreement in Poland

A fixed-term tenancy agreement differs significantly from an indefinite agreement under Polish law. In the case of such an agreement, the parties undertake to rent for a specific, predetermined period, e.g. 6 or 12 months. In principle, neither the landlord nor the tenant may terminate the agreement before the expiry of this period, unless the provisions of the agreement provide for specific situations that allow this. Examples include a gross breach of the tenant’s obligations, failure to pay rent or other events precisely specified in the lease agreement.

The Polish Supreme Court has indicated that a fixed-term lease agreement may also provide for the possibility of terminating the agreement for ‘important reasons’. The advantage of using such wording in a lease agreement is its flexibility, which allows the interests of both parties to be taken into account. At the same time, case law indicates that making the possibility of terminating the agreement dependent on the occurrence of ‘important reasons’ may lead to different assessments of the importance of a given reason by each of the parties, which is why in practice it is recommended to specify in the agreement what the parties consider to be important reasons justifying the termination of the lease agreement in order to avoid disputes over interpretation.

Ultimately, it is the court that assesses the effectiveness of the termination and decides whether the reason given by the terminating party is indeed ‘important’, using objective criteria and considering the interests of both parties to the legal relationship.

A practical example from Polish case law:

“Article 673 § 3 of the Polish Civil Code  is understood as a prohibition on terminating such agreements in a situation where the decision to terminate is to be left solely to the discretion of the parties or one of the parties to the agreement. A provision that allows for the termination of fixed-term contracts by way of free termination is therefore not only contrary to the nature of such a relationship, but also to the provisions of the Act. However, the introduction of a provision into a fixed-term lease agreement which provides for the possibility of its termination in circumstances specified in the agreement should be assessed differently (judgment of the Polish Court of Appeal in Gdańsk of 20 September 2013, case no. I ACa 402/13).

In practice, this means that it is very difficult for the landlord to terminate a lease agreement, as it must be strictly justified and preceded by the fulfilment of statutory requirements, and any violation of the provisions may result in the termination being deemed invalid.

Of course, the landlord can always propose to terminate the agreement by mutual consent. In practice, this means that the landlord and tenant jointly agree on the date of termination of the lease, e.g. after two months, to give the tenant time to find new premises. If both parties reach an agreement, it is possible to terminate an indefinite contract without any problems and without the need for formal termination procedures.

However, the landlord cannot impose this solution on the tenant. If, despite this, the landlord attempts to force the tenant to leave the premises, the tenant has the right to refuse to terminate the lease agreement, and in the event of an attempt by the landlord to use force, the tenant may call on the landlord to leave the flat and report the matter to the police, citing a violation of domestic peace. In this way, the tenant protects their right to undisturbed use of the premises.

Summary

Renting a flat in Poland can involve various problems that tenants most often encounter in practice. The most serious ones include: failure to return the deposit, unjustified rent increases, unlawful entry of the owner into the flat and termination of the lease agreement without legal grounds.

Tenants should be aware of their rights under the Polish Tenants’ Rights Protection Act and the Polish Civil Code . Knowledge of the regulations, documentation of the condition of the flat and confidence in dealing with the landlord allow tenants to effectively protect their rights and minimise the risk of disputes.