Acceptance of the property from the developer and the procedure for rectifying defects under Polish law

What is property acceptance from a developer under Polish law?

The handover of the premises in Poland consists of an inspection of the site where the development project is being carried out and a visual confirmation by the purchaser (in the presence of the developer) that the subject matter of the contract has been completed in accordance with the terms of the obligation: the development contract and its attachments, the construction design, building codes, and accepted construction practices (E. Gniewek (ed.), System of Private Law, vol. 3, 2020, 4th ed.).

The acceptance of the apartment from the developer should be conducted in the presence of the purchaser(s) of the premises and the developer, or the developer’s authorized representative; however, the Polish Real Estate Development Act does not preclude the possibility of conducting the acceptance with the participation of a construction expert, a supervision inspector, etc. In practice, therefore, the buyer of the unit does not have to (and in fact should not) conduct the acceptance alone. They may seek the assistance of a person with the appropriate qualifications and technical knowledge who can help identify any irregularities or defects in the unit.

An expert’s opinion will allow for determining the technical condition of the completed premises, its compliance with the construction design, the rules of the art of construction, technical standards, and the development agreement. The document may also indicate the possible causes and effects of any irregularities and suggest how they should be remedied.

When can the property be accepted from the developer?

The second sentence of Article 41 of the amended Polish Real Estate Development Act explicitly defines two circumstances under which a property may be accepted from the developer (sometimes colloquially referred to as the “technical acceptance of the apartment”):

• after the occupancy permit becomes final, or
• after notifying the building supervision authority of the completion of a single-family home, provided there is no objection from that authority.

Our experience shows that developers often attempt to conduct an acceptance before the building is approved for use, frequently referring to it as a “pre-acceptance.” However, such a “pre-acceptance” generally has no legal effect under the Polish Real Estate Development Act and constitutes a void legal act (B. Lackoroński (ed.), The Real Estate Development Act. The Act on the Protection of the Rights of Purchasers of Residential Units or Single-Family Homes and the Real Estate Development Guarantee Fund. Commentary, 4th ed., 2026), which the purchaser may explicitly communicate to the developer. Of course, as professional participants in the real estate market, developers, as a rule, are (or should be) aware of the requirements under the Real Estate Development Act.

In a situation where the developer refuses to present the buyer with a final occupancy permit or a notice of completion of construction, citing a “pre-acceptance,” we recommend not signing the “acceptance document” or “pre-acceptance document.”

It appears, however, that under certain circumstances, the buyer may attend a “pre-acceptance” inspection and, at that stage, point out defects in the property that the developer should remedy by the time of the actual acceptance, although, as noted above, this procedure will not, of course, constitute acceptance of the property within the meaning of the Polish Real Estate Development Act. However, each factual situation requires a separate analysis.

What is a property acceptance report under Polish law?

Pursuant to Article 41(3) of the Polish Real Estate Development Act, an acceptance report is drawn up upon acceptance of the premises, in which the buyer may report defects in the residential unit or single-family home. The document confirming that the acceptance of the premises has taken place is therefore the report on the performance of the acceptance procedure. The property acceptance report is signed by the purchaser of the property and the developer (or the developer’s representative based on a valid power of attorney). The property acceptance report is usually in written form.

The content of the report generally consists of the following elements:

• the place and time of the acceptance,
• the subject of the acceptance, including the usable area determined based on relevant measurements,
• a description of defects in the property identified by the buyer,
• the buyer’s refusal to accept the property in the event of a material defect,
• the developer’s acknowledgment or refusal to acknowledge a material defect,
• the technical documentation provided, door keys, remote controls, etc.

It is essential that, during the acceptance procedure, all defects reported by the buyer be included in the property acceptance report, even if the developer considers them to be unfounded from a construction standpoint. The buyer therefore has every right to demand that all defects be included in the report, and the developer cannot refuse this.

Furthermore, our experience shows that the property acceptance report often contains a statement by the buyer in which the buyer waives claims, for example, for contractual penalties due to a delay in transferring ownership of the property. First and foremost, it seems obvious that such statements should not appear at all in a document such as the apartment acceptance report. However, if the developer proposes that the buyer submit such a statement or statements, or even makes signing the handover protocol contingent upon their submission, the buyer should not agree to this due to the potential negative consequences regarding the pursuit of claims against the developer in the future.

Types of defects identified during property handover in Poland

In many cases, during the property handover, the buyer identifies defects; the most common ones include:

• uneven, crooked walls,
• uneven floors,
• leaky windows, balcony doors, and entry doors,
• scratched window sills,
• damaged windows,
• scratches, dents,
• damage, scratches on balcony railings,
• deviations from the design (incorrect connections, missing components in installations),
• inadequate ventilation performance,
• poor sound insulation of the premises.

Of course, the above list is merely illustrative, and in practice there may be many more defects, which may affect various parts of the premises.

Developer’s obligation to respond to reported defects under Polish law

The Polish Real Estate Development Act stipulates that the developer is obligated, within 14 days of signing the acceptance report, to provide the buyer in writing or on another durable medium with:

• information regarding the acknowledgment of defects, or
• a statement regarding the refusal to acknowledge defects and the reasons for such refusal.

Deadlines for repairing defects under the Polish Developer Act

If the developer fails to inform the buyer of the recognition of defects or of the refusal to recognize defects and the reasons for such refusal within 14 days of signing the acceptance protocol, it is deemed that the developer has recognized the defects. The developer is required to remedy the recognized defects in the residential unit or single-family home within 30 days of signing the acceptance protocol.

If the developer, despite exercising due diligence, fails to remedy the defects within the deadline, the developer shall specify an alternative deadline for remedying the defects along with a justification for the delay. This deadline must not cause undue inconvenience to the buyer.

Buyer’s rights if the developer fails to repair defects

If the developer fails to remedy the defects within the specified time or fails to specify such a time, the buyer shall set a new deadline for the developer to remedy the defects. Upon the fruitless expiration of this deadline, the buyer may remedy the defects at the developer’s expense.

Refusal to accept property due to material defects under Polish law

Under the law, the buyer may refuse to accept the property if, during the acceptance inspection, it is found that the apartment or single-family home has a material defect and the developer refuses to acknowledge it in the acceptance report. In that case, the parties shall set a new date for the acceptance of the property, taking into account the time needed to remedy the defect.

Expert opinion in disputes over material defects

If, during the subsequent acceptance, it turns out that the material defect has not been remedied, the buyer may again refuse acceptance. In that case, the buyer may request a building inspector to issue an opinion regarding the existence of a material defect. The buyer will have one month to do so, starting from the date of the second acceptance. Only after obtaining an expert’s opinion confirming the existence of a material defect will the buyer be able to withdraw from the development contract. This opinion will also serve as the basis for a refund to the buyer from the Developer Guarantee Fund.

It is also worth noting that the new acceptance procedure stipulates that only the buyer has the right to request an expert opinion; at the same time, the law does not provide for a “defense” procedure by the developer, such as the right to respond substantively to the opinion or to submit a counter-opinion. This may be particularly significant if the opinion is formulated in an unprofessional, erroneous, or flawed manner, or if it does not correspond to the nature of the alleged defects.

Effect of property acceptance on future defect claims in Poland

It is also worth noting that the mere act of acceptance, even if defect-free, does not cause the buyer to lose the ability to pursue claims regarding defects in the premises at a later stage, although in any potential court proceedings, the developer will certainly rely on the signed acceptance protocol. Case law holds that the preparation and signing of the acceptance report justifies the presumption that the premises were delivered in accordance with the contract, but this is a presumption that can be rebutted by demonstrating that the contract was not properly performed (as, for example, the Polish Supreme Court held in its judgment of July 24, 2009, case no. II CSK 61/09) .

What are “material defects” and “immaterial defects” in a property according to Polish law?

As follows from the above considerations regarding the property acceptance procedure, the Polish Real Estate Development Act thus introduces a distinction between material and immaterial defects in a property, and the question of whether a specific defect is “material” or “immaterial” may be of fundamental importance to the purchaser of the property.

At the same time, the Act does not provide a definition of “material defect,” but leaves the term undefined, which consequently leaves room for a broad interpretation of the concept. In practice, the interpretation of specific factual circumstances regarding the presence (or absence) of a material defect will rest with buyers, developers, and, in the event of a legal dispute, experts issuing technical opinions. Of course, in each case, the assessment of a defect’s “materiality” should take into account the circumstances and technical conditions of the specific factual situation.

At the same time, legal doctrine indicates that in “in recent years, case law has been increasingly bold in expanding the concept of a material defect. As a result, a material defect is also one that precludes the normal use of the property in accordance with the purpose of the contract, deviates significantly from its functional and aesthetic characteristics, substantially reduces its value, or constitutes a significant deviation from the order placed.” (K. Osajda (ed.), The Polish Real Estate Development Act on the Protection of the Rights of Purchasers of Residential Units or Single-Family Homes and the Developer Guarantee Fund. Commentary, 3rd ed., 2026)

It is worth noting, however, that judicial precedent interprets the definition of “material defect” based on the warranty provisions set forth in the Polish Civil Code.

A practical example from Polish case law:

“A material defect prevents the proper use of the delivered item, precludes its normal use in accordance with the purpose of the contract, or deprives it of the characteristics inherent to it or expressly stipulated in the contract” (judgment of the Polish Court of Appeals in Lublin, 1st Civil Division, dated November 26, 2019, Case No. I AGa 55/20).

“When assessing the materiality of a defect within the meaning of Article 560 §1 of the Polish Civil Code, one should primarily consider the buyer’s relevant expectations (…) related to its functionality, rather than merely the objective technical condition (…) in the form of its unsuitability for normal use (in general or to a specific extent) or its lack of value in a functional sense (judgment of the Polish Supreme Court dated June 29, 2004, II CK 388/03).”

Can an expert’s report in a Polish court proceedings have the status of a court expert’s opinion?

In a situation where the acceptance of an apartment reveals defects, and the developer refuses to repair the defects in the residential unit or single-family home, it may be necessary for the buyer to initiate civil proceedings. In most such cases, the buyer already has an opinion prepared by a construction appraiser, which confirms that the property does not comply with the development contract and the rules of good construction practice regarding the property’s technical condition.

If the matter proceeds to court, however, the buyer of the property should bear in mind that the expert opinion they commissioned will not have the status of a court-appointed expert’s opinion in any potential court proceedings, but will merely constitute a so-called “private opinion” to which they may refer. In other words, a private expert’s opinion cannot replace that of a court-appointed expert, who will most likely be appointed at the court’s request.

On the other hand, however, a private opinion certainly not only “strengthens” a party’s position in the proceedings but may also serve as a basis, for example, for admitting a supplementary expert opinion in a situation where the conclusions drawn from both documents are divergent. Furthermore, in many cases, the submission of a private opinion may serve as evidence of improper construction of the premises in preliminary injunction proceedings, and thus lead to the court issuing a preliminary injunction.

It is also worth noting the Polish Supreme Court’s judgment of February 2, 2011 (Case No. II CSK 323/10), in which the Polish Supreme Court ruled that private expert opinions commissioned by the parties before the commencement of the proceedings or during their course constitute “clarification, taking into account specialized knowledge and their positions,” and that a private expert opinion may also serve as grounds for the court to admit evidence from another expert’s opinion.

Can the cost of a private expert opinion be reimbursed during the proceedings?

Generally speaking, yes, the cost of an expert opinion obtained by a party prior to the initiation of legal proceedings may constitute compensable damages, provided that the plaintiff demonstrates that incurring the cost of the expert opinion was objectively appropriate, indispensable, necessary, and reasonable, sufficiently justified from the perspective of effectively pursuing a claim for damages against the developer.

In its judgment of September 2, 1975 (Case No. I CR 505/75), the Polish Supreme Court held that an expert opinion conducted prior to the initiation of court proceedings and outside the scope of securing evidence may constitute a material basis for awarding damages. In such a case, the cost of the expert opinion constitutes compensable damage (article 361 of the Polish Civil Code). A similar position is also confirmed in other court rulings, for example in the judgment of the Polish Regional Court in Bydgoszcz, 8th Commercial Division, dated December 5, 2019 (case No. VIII Ga 62/19).

Summary

The handover of the property from the developer is a formal process to verify whether the property has been constructed in accordance with the contract, the design, and applicable building codes; this process can only take place after an occupancy permit has been obtained or construction has been completed without objection from the relevant authority. During this process, a report is drawn up in which the buyer lists all defects, and the developer has a legal obligation to address these issues within the statutory timeframes. Defects may be material or immaterial, with the former potentially justifying a refusal to accept the property and, in extreme cases, even allowing for withdrawal from the contract. The entire procedure provides the buyer with legal protection, though its effectiveness depends on the proper documentation of defects and the consistent enforcement of claims.