The most common mistakes in applications to the Polish Ministry of Internal Affairs and Administration for the purchase of real estate by a foreigner

An application for a permit for the purchase of real estate by a foreigner is a comprehensive and highly formalised document. It usually consists of several to a dozen or so pages and includes several dozen attachments. Although the Act on the Acquisition of Real Estate by Foreigners and the relevant regulation of the Minister of Internal Affairs specify the scope of information and documents required when submitting an application, its correct preparation in practice poses significant difficulties.

If the preliminary agreement provides for a short deadline for obtaining the consent of the Polish Ministry of Internal Affairs and Administration (e.g. 2-3 months), the risk of procedural errors becomes particularly acute. In practice, even minor inaccuracies or omissions in the evidence result in a request to supplement the application. Each such request, followed by the provision of explanations and additional documents, significantly prolongs the administrative proceedings and, in extreme cases, may lead to the refusal to grant a permit.

We regularly receive cases from clients who have been corresponding with the Polish Ministry of Internal Affairs and Administration for many months, and subsequent additions to their applications do not lead to the conclusion of the proceedings. The repetition of errors in the content of applications and deficiencies in documentation is not due to the ambiguity of the regulations, but to the high degree of formalisation of the procedure and the extensive catalogue of evidentiary requirements. In practice, an additional risk factor is the administrative recognition carried out by the Ministry of the Interior and Administration and the inconsistent practices of individual case officers, which leads to divergent evidentiary expectations and prolongs proceedings.

We have compiled this list based on our experience with these proceedings.

Imprecise description of the property

One of the most common errors in applications for the acquisition of real estate by a foreigner is the imprecise description of the property that is the subject of the application. The Polish Act on the Acquisition of Real Estate by Foreigners and the relevant regulation require unambiguous identification of the property, including all its essential elements, in particular:

• type of property (land, developed),
• cadastral parcel number,
• area,
• administrative location (town, municipality, district, province),
• land and mortgage register number and the competent court keeping the register.

The application must be accompanied by at least:

• a current extract and excerpt from the land register,
• a current copy of the land and mortgage register (as at the date of submission of the application).

If the purchase also includes a share in an internal road (or other common property), please note that this property (share in it) also constitutes a separate object of purchase. This means that it must be described separately and precisely in the application, indicating the plot number, area, location, land and mortgage register number, and attaching a complete set of documents relating to this property. Omitting a share in a road or providing only a laconic description of it always results in a request from the Polish Ministry of the Interior and Administration to supplement the deficiencies and prolongs the proceedings.

Failure to submit certified translations of documents

Another common mistake is the submission by foreigners of documents drawn up in a foreign language without a certified translation into Polish. However, it should be remembered that the official language of proceedings for the acquisition of real estate before the Polish Ministry of Internal Affairs and Administration is Polish, and therefore the authority only accepts documents translated by a certified translator. This obligation applies to all documents attached to the application, in particular.

In addition, the translation should cover the entire document (all pages, attachments, stamps and annotations) and be certified by a sworn translator entered in the list of sworn translators.

It should also be remembered that, in addition to a certified translation, the original document must be submitted.

Failure to submit originals or certified copies of documents

A common formal error is to submit ordinary photocopies of documents with the application, without presenting the originals for inspection or copies certified as true copies of the originals. In proceedings for the issuance of a permit to purchase real estate, documents must have evidential value, and ordinary copies, as a rule, do not have such value.

The Ministry of the Interior and Administration only accepts:

• original documents,
• copies of documents certified as true copies by a notary public or by a party’s representative acting in the case who is a solicitor or barrister.

Submission of uncertified copies will result in a request from the Polish Ministry of Internal Affairs and Administration to supplement the formal deficiencies. In practice, this means that the documents must be re-compiled, then certified and sent to the Ministry of Internal Affairs and Administration, which always prolongs the proceedings.

Submitting documents older than 6 months

Another common mistake is to attach documents to an application for the purchase of real estate by a foreigner which are no longer valid on the date of submission, i.e. are older than 6 months. In proceedings for the issuance of a permit to purchase real estate, the current legal and factual status of the property is of key importance, and therefore documents older than 6 months do not serve as evidence.

In the case of land properties, the following current documents are required:

• a simple copy of the land and mortgage register (and if no land and mortgage register is kept for the property – a certificate from the collection of documents),
• an extract from the land register,
• an extract from the cadastral map,
• an extract from the applicable local spatial development plan or, if there is no plan, a certificate from the competent authority confirming its absence.

Importantly, in practice, it is also significant that the validity of the documents cannot be ‘replaced’ by a statement from the developer or seller confirming that there have been no changes in the legal or actual status of the property. Such confirmations (even if they are true) have no evidential value in proceedings conducted by the Ministry of the Interior and Administration.

Insufficient evidence of the sources of financing for the purchase of real estate

One of the most common mistakes made in applications for the purchase of real estate by a foreigner in Poland is insufficient documentation of the sources of financing for the purchase. The Polish Ministry of the Interior and Administration requires proof of both the legality of the origin of the funds and their actual availability, regardless of whether they were obtained as a result of, for example:

–    an employment contract or other form of employment,

–    business activity,

–    sale of real estate abroad,

–    donations or inheritances,

–    or any combination thereof.

This is a key element of the application, and our experience shows that each year the Ministry of the Interior and Administration examines these issues more and more thoroughly. Sources of funding must therefore be clearly described, justified and supported by relevant documents. A general statement such as ‘the purchase will be made from own funds’ is insufficient and leads to requests to supplement the deficiencies, which prolongs the proceedings.

In the case of real estate purchases financed by a bank loan, the formal requirements become even more restrictive. The polish Ministry of the Interior and Administration requires, among other things, the presentation of a current loan decision or a loan commitment, certified by the signature of a person authorised to represent the bank.

In our experience, documents of this type sent too early may be insufficient to complete the proceedings. This is due to the fact that during the proceedings, the authority requests opinions from other authorities, and an earlier loan decision may not reflect the current legal status or actual availability of funds. In practice, it is therefore crucial to synchronise the date of submission of the application with the validity of the credit decision so that the financial documents are fully up to date and complete.

Failure to submit documents proving ties with Poland

Foreigners often assume that simply residing in Poland automatically demonstrates a connection with the country and omit this issue in their application or treat it as less important. In practice, however, the Ministry of the Interior and Administration requires detailed evidence and documentation of ties with Poland, so foreigners should not underestimate this part of the application.

More details on demonstrating ties with Poland are provided in this publication.

Threat to national defence, state security or public order, as well as social policy and health considerations

Finally, it is worth mentioning that not every negative decision by the Ministry of the Interior and Administration results from formal deficiencies in the application or insufficient documentation of the fulfilment of statutory conditions. Even in the case of complete and correctly prepared documentation, there are situations in which the decision may be negative.

Pursuant to Article 1a(1)(1) of the Polish Act on the Acquisition of Real Estate by Foreigners, a permit shall not be issued if the acquisition of real estate by a foreigner may pose a threat to national defence, state security or public order, or if it is opposed on grounds of social policy or public health protection. What does this mean in practice? Case law indicates that the concepts justifying the refusal to grant a permit for the acquisition of real estate by foreigners are largely undefined and leave relatively large room for discretion, especially in terms of assessing threats to national defence, security or public order, and most notably in terms of ‘social policy considerations’ (judgment of the Polish Provincial Administrative Court in Warsaw of 16 October 2023, ref. no. IV SA/Wa 1208/23).

Pursuant to the Polish Act on the Acquisition of Real Estate by Foreigners, the Polish Ministry of Internal Affairs and Administration may verify the grounds for this purpose with the assistance of the relevant government authorities. If the Polish Ministry of Internal Affairs and Administration does not have the necessary information, it may request that it be provided or that additional measures be taken by the relevant authority in order to assess the compliance of the planned acquisition with the conditions of security and public interest (Acquisition of real estate by foreigners. Commentary, Wereśniak-Masri 2024, 5th edition). In practice, the Polish Ministry of the Interior and Administration implements the provision in such a way that the authority requests an opinion from the relevant institutions, i.e.

–    the Head of the Internal Security Agency,

–    the Minister of National Defence, the Commander-in-Chief of the Border Guard, and

–    the Commander-in-Chief of the Police.

In practice, this means that if the grounds specified in the Act are found in the course of the proceedings, the Ministry of the Interior and Administration is obliged to issue a negative decision, regardless of the completeness and correctness of the documents submitted by the applicant (see the Polish Supreme Administrative Court in its judgments of 13 July 2020, ref. no. II OSK 933/20, and of 4 January 2024, ref. no. II OSK 843/23). In practice, this means that even if the application is complete and correct, the Ministry of the Interior and Administration may conduct proceedings, request opinions from the authorities listed above and then issue a negative decision.

Importantly, in practice, the Polish Ministry of Internal Affairs and Administration only refers the application to the competent authorities after processing the entire application, i.e. after verifying the completeness of the documents, translations and sources of financing. This means that a foreigner may be surprised by a negative decision at the very end of the proceedings, and prior preparation of the application does not eliminate the risk of refusal.

Therefore, if there are any circumstances that may indicate the fulfilment of negative conditions, they should be carefully analysed before submitting the application.

Summary

Preparing an application for a permit for a foreigner to purchase real estate is a complex process involving numerous formal requirements. Care, timeliness and completeness of documentation, synchronisation of the application date with the credit decision and a conscious approach to the statutory conditions are key to minimising the risk of delays and refusals.