Real estate agent remuneration in Poland – commission rules, brokerage agreement, and legal aspects

Real estate agency remuneration in Poland, like real estate brokerage services themselves, has become a common element of transactions in the dynamically developing and changing Polish real estate market. Brokers participate in both the rental of flats, houses and commercial premises, as well as in sales transactions.

The purpose of this article is to discuss the basic legal issues related to the complex subject of remuneration for real estate brokerage services, as well as to draw attention to the most important practical aspects related to concluding a contract with a real estate agency.

What is real estate brokerage in Poland according to Polish legal regulations?

Pursuant to Article 179b of the Polish Real Estate Management Act (hereinafter: UGN) governing real estate brokerage in Poland, real estate brokerage consists in performing, for a fee, activities aimed at the conclusion of agreements by other persons:

• purchase or sale of rights to real estate;
• purchase or sale of cooperative ownership rights to premises;
• rental or lease of real estate or parts thereof;
• other than those specified in points 1-3, the subject of which are rights to real estate or parts thereof.

According to the above definition, the activities of an intermediary are aimed at bringing about the conclusion of a specific type of real estate contract between third parties in Poland. These activities do not necessarily have to guarantee a specific legal or factual effect, i.e. the conclusion of an appropriate contract by the person ordering the service. This distinction may be of key importance for intermediaries in market practice, given that in many cases the real estate agent’s remuneration may be due regardless of the ‘success’ achieved, i.e. the conclusion of the transaction by the seller and the buyer. This issue is discussed in more detail in point 3) below.

Legal regulations concerning the remuneration of real estate agencies in Poland

The legal framework regulating the activities and, consequently, the remuneration of real estate agencies in Poland is not contained in a single legal act. The basis for the legal regulations can be found both in the above-mentioned Polish Real Estate Management Act and in the Polish Civil Code.

However, real estate brokerage agreements are not comprehensively regulated in the UGN, which means that the provisions of the Polish Civil Code concerning similar agreements must be applied to them in an appropriate manner. According to the established view in case law, a real estate brokerage agreement is a service agreement most similar to an agency agreement regulated in Articles 758-7649 of the Polish Civil Code. As a named contract, the provisions on contracts of mandate under Article 750 of the Polish Civil Code do not apply to brokerage contracts, as their application is only provided for in the case of unnamed contracts, i.e. those that are not regulated by separate provisions.

In practice, this is of significant importance both for the scope of the intermediary’s obligations and for the possibility of pursuing claims in Poland. Basing the intermediary agreement on the regulations concerning agency agreements means that the relationship between the parties is governed, inter alia, by the provisions concerning due diligence in performing activities for the principal, the duty of loyalty and the right to commission. On the other hand, the exclusion of the application of Article 750 of the Civil Code means that it is not possible to automatically rely on the provisions concerning contracts of mandate, which is important, for example, when assessing the scope of the intermediary’s liability or the effects of termination of the agreement.

A practical example from Polish case law:

“When considering the characteristics of a real estate brokerage agreement as defined in Articles 180-183 of the Real Estate Management Act, one must agree with the prevailing doctrine that such an agency agreement is most similar not to a contract of mandate, as assumed by the courts of both instances, but to an agency agreement.” (Polish Supreme Court judgment of 20 December 2005, file ref. no. V CK 295/05).

Pursuant to Article 180(3) of the Polish Real Estate Management Act, the scope of activities of a real estate agent is specified in each case in the brokerage agreement. It is this agreement that constitutes the basic document defining both the scope of the agent’s obligations and the rules for the payment of remuneration to the agent. In practice, it is the content of the agreement that determines whether and when the agency is entitled to remuneration.

Consequently, the key source of regulation of the agent’s remuneration is the agency agreement itself concluded with the client in Poland. In practice, this means that it is the provisions of the agreement that will determine:

whether the agent will be entitled to remuneration,

• the amount of remuneration due to the agent,
• the moment at which the remuneration will be due to the agent,
• the event in connection with which the remuneration will be due to the agent.

For example, this may be the mere indication of an offer, bringing about negotiations or the actual conclusion of a sale or lease agreement by the client. Failure to specify these issues precisely in the contract may lead to disputes over the agent’s remuneration, especially in a situation where the transaction takes place without the agent’s further involvement, but using information or contacts previously provided by the agent. This issue is described in more detail in the next section of this publication.

When is a real estate agency entitled to remuneration in Poland?

As mentioned above, pursuant to Article 179b of the Polish UGN, the activities of an agent are aimed at creating conditions enabling the conclusion of a specific type of contract between third parties, whereby their purpose does not have to be to achieve a specific legal or factual effect, such as the actual conclusion of the contract by the parties ordering the service.

A practical example from Polish case law:

“Intermediation consists in performing factual, not legal, activities; the intermediary acts independently and is not obliged to follow the instructions of the principal; the direct purpose of the intermediary’s activities is not to bring about a specific legal effect, but to create conditions in which the conclusion of the main contract is possible, but only with the participation of the interested parties themselves; the intermediary acquires the right to remuneration only if the conditions created by him lead the interested parties to conclude the main contract, and therefore the entire economic risk rests with the intermediary, who, as a rule, does not even have the right to reimbursement of expenses incurred. All this makes it difficult to apply the provisions on commission contracts to real estate brokerage contracts, even appropriately (judgment of the Polish Court of Appeal in Krakow, 1st Civil Division, of 25 January 2024, ref. no. I AGa 128/22).

It should therefore be borne in mind that the content of Article 179b of the UGN does not make the agent’s remuneration dependent on the success of his actions, i.e. on the conclusion of a contract (sale/lease, etc.). Thus, according to the provision, a real estate brokerage agreement does not have to be a ‘performance contract’, but may be a so-called ‘best efforts agreement’. How should these terms be interpreted in practice? A best efforts agreement obliges the agent to take specific actions with due diligence, but does not guarantee a specific result (e.g. the conclusion of a property sale agreement). On the other hand, a result-oriented agreement assumes that the agent is responsible for achieving a specific result, e.g. bringing about the effective conclusion of a sale agreement.

A practical example from Polish case law:

‘The brokerage agreement provided for in Article 180 of the Act of 21 August 1997 on real estate management is a best efforts agreement, which the parties may transform into a results agreement’ (judgment of the Polish Supreme Court of 29 April 2010, file ref. no. IV CSK 464/09).

How should the term ‘transform’ used by the Polish Supreme Court be interpreted and what are the practical consequences of this ‘transformation’? In practice, the parties to the agreement may conclude (and this is often the case in market practice) provisions according to which:

• make the agent’s remuneration dependent solely on the successful conclusion of a specific contract (e.g. sale of real estate), and not on the actions taken by the agent alone,
• clearly indicate that the agent undertakes not only to exercise due diligence in their actions, but also to achieve a specific result in the form of concluding a transaction.

The introduction of such provisions results in the ‘transformation’ of the agency agreement – from a contract of due diligence, it becomes a contract of result. Of course, in such a case, the intermediary’s remuneration will only be due upon achievement of the result specified by the parties, i.e. the actual conclusion of the transaction between third parties specified in the intermediation agreement.

Therefore, it will not be due in a situation where the agent only takes steps to conclude the transaction (e.g. in the form of publishing advertisements, showing the property to potential buyers, etc.), but without the final result of concluding the contract. The moment when the client’s obligation to pay the agent’s commission becomes due will therefore be the moment when the contract is concluded by third parties, which was directly brought about by the agent’s actions.

In current market practice, it is common to conclude real estate brokerage agreements as result-based agreements, which make the payment of remuneration conditional upon the occurrence of a specific effect, i.e. the conclusion of an agreement. It can be assumed that this is primarily due to the expectations of the clients of brokerage agencies, who want to be sure that the broker will only be paid after the objective of the cooperation, i.e. the conclusion of a contract, has been successfully achieved. At the same time, it seems that this model of cooperation also motivates the broker to act effectively and actually bring about the conclusion of a contract between the parties.

It will therefore be important for the parties to a real estate agency agreement in Poland to specify precisely in the agreement what the result of the agent’s actions is to be. The lack of a clear indication that the obligation to pay remuneration arises, for example, upon the conclusion of a sale agreement by the client, or even a preliminary agreement, may result in the obligation to pay remuneration arising when the agent connects the client with the buyer or seller of the property. It can then be considered that, in fact, ‘actions aimed at the conclusion of a sale agreement by other persons’ have been performed, as provided for in Article 179b of the Polish UGN.

It is also worth bearing in mind that termination of a real estate brokerage agreement does not release the client from the obligation to pay remuneration if, after termination, they concluded a real estate sale agreement with a person with whom they were introduced by the broker or whose conclusion was facilitated by the broker. In the case described, it is irrelevant whether the client concluded the agreement on their own or used the services of another agent who, as a second agent, enabled them to conclude the property sale agreement; what is important is whether the first agent actually made it possible to conclude such an agreement. Such situations often give rise to disputes, especially in cases where a new agent brings about the conclusion of a contract, but without the prior involvement of the first agent, no contact would have been established between the parties to the transaction. In court practice, when assessing a claim for remuneration of a real estate agent, the causal link between the agent’s actions and the conclusion of the agreement is analysed first and foremost, rather than the formal termination of cooperation.

Forms of remuneration for real estate agencies in Poland

There are no legal provisions in Poland that explicitly define the form of remuneration for real estate agencies. In accordance with the principle of freedom of contract expressed in Article 353¹ of the Polish Civil Code, the parties have complete freedom in determining the amount and method of payment of remuneration for real estate agency services.

In practice, the most common solution is to pay the agent a commission, i.e. a specified percentage of the sale price of the property or the value of the transaction. The amount of the commission is not regulated by law, but results from the agreements between the parties and accepted market practices. Typically, in the case of real estate brokerage in Poland, this rate ranges from 2% to 5%, but it may be different, for example, in the case of brokerage in the sale of commercial properties rather than residential premises.

The regulations also do not determine which party to the transaction – the seller, the buyer or both – should bear the cost of the agent’s remuneration. In practice, these solutions vary and may depend on individual arrangements with the client, the type of property and market customs.

Another, much less common method is to set the agent’s remuneration as a lump sum, i.e. a specific amount that does not depend on the value of the transaction. This settlement model may be particularly advantageous for clients interested in predictable costs, but from the agent’s point of view, it may not provide the same incentive to maximise the value of the transaction.

In legal transactions, one may also encounter a mixed form of remuneration for the intermediary, consisting of a lump sum payable upon conclusion of the contract and a commission payable upon completion of the transaction.

The principle of freedom of contract allows the parties to an agency agreement to freely determine whether the agent’s remuneration will be paid in a single lump sum or in instalments. Some contracts with a fixed commission provide for payment of part of the commission upon conclusion of the preliminary contract, with the remainder contingent upon conclusion of the main contract transferring ownership of the property. In such cases, it is extremely important to specify precisely in the agency agreement when each part of the agent’s remuneration is due and the conditions for its payment. The lack of clear provisions may lead to interpretative doubts and disputes as to whether and when the agent acquired the right to partial agency remuneration, especially in cases where a preliminary agreement was concluded but the final agreement was not concluded for reasons beyond the agent’s control.

In the case of real estate brokerage agreements that include additional services provided by the broker (e.g. analysis of the legal status of the property), the moment of obligation to pay part of the broker’s remuneration may be dependent on the performance of additional services by the broker. It is therefore important to analyse the agency agreement in terms of the scope of activities to be performed by the agent, as these may affect the moment at which the client is obliged to pay the agent’s remuneration.

Exclusive and non-exclusive agreements with real estate agents according to Polish law

Under Polish law, a real estate brokerage agreement can be concluded in two basic variants: exclusive or non-exclusive. In the case of an exclusive agreement, the client undertakes to cooperate with only one broker, which means that only that agency has the right to represent their interests in a given transaction. A non-exclusive agreement, on the other hand, allows the client to use the services of several agencies at the same time, which may independently conduct activities aimed at concluding a sale or lease agreement. The exclusivity clause may be of key importance in determining the agent’s right to remuneration.

A practical example from Polish case law:

“In real estate transactions, so-called exclusive agreements are concluded, the purpose and meaning of which corresponds to the concept of exclusivity under a sales agreement (Article 550 of the Civil Code). The essence of an exclusive agreement in real estate brokerage boils down to eliminating the possibility of the principal using the services of another broker, and a breach of such a clause may be considered a failure to perform or improper performance of the agreement, and consequently give rise to liability for damages. However, even in the case of such an agreement, the principle applies that the agent is entitled to remuneration for the activities undertaken by him which led to the achievement of the purpose for which the agency agreement was concluded. This conclusion stems from the general assumption that the contractor is entitled to remuneration for activities which, in the light of the contractual relationship between the parties, may be considered as the performance of his obligation” (judgment of the Polish Court of Appeal in Katowice, 5th Civil Division, of 14 October 2022, ref. no. V ACa 162/21).

In the context of exclusive agency agreements, it is particularly important to pay attention to potential abusive clauses, i.e. those that are not binding on clients and may unduly favour the agent at the expense of the client.

Exclusivity agreements, by definition, limit the customer’s freedom to choose other intermediaries or to conclude transactions independently. Therefore, any provisions introducing sanctions for breach of exclusivity, the obligation to pay remuneration to the agent despite the agent’s lack of actual participation in the transaction, or significant restrictions on the possibility of terminating the agreement should be formulated with caution and with respect for the contractual balance between the parties.

Examples of abusive clauses include:

“Exclusivity means that the Principal may not conclude an agreement for the brokerage of the sale of the Property with any other entity, nor may it directly, alone or with the help of other entities, perform the activities specified in § 4(1) of the Agreement in relation to the Property, and furthermore, may not conclude a contract for the sale of the Property (or any other contract referred to in § 5(4) of the Agreement) without the participation of the Agent, unless the Agent fails to perform its obligations under the Agreement in whole or in significant part.” (clause entered under number 4295)

“In the event of a breach by the Principal of the prohibition resulting from the exclusivity granted to the Agent, the Agent shall be entitled to demand from the Principal payment of a contractual penalty in the amount of the remuneration specified in § 5(1) of the Agreement.” (clause entered under number 4297)

Remuneration of real estate agencies in Poland – the most common practical problems

When concluding real estate brokerage agreements, many practical problems may arise which, if overlooked, may result, for example, in the need to pay remuneration to the broker, even if the client was not aware of this when concluding the agreement.

Remuneration for bringing about a transaction or for actions taken by the agent?

As indicated above, a real estate agency agreement may be a best efforts agreement or a results-based agreement. Consequently, a contract that does not clearly specify this issue is considered a best efforts contract and, pursuant to Article 179b of the Polish Real Estate Management Act, the client will be obliged to pay remuneration for the actions taken by the agent to enable the conclusion of the transaction, even if it did not take place.

The agent may therefore be entitled to remuneration for simply performing activities aimed at concluding real estate contracts, regardless of whether or not the contract is ultimately concluded. Therefore, it is crucial (and often overlooked) in real estate agency agreements to precisely define the agent’s obligations. In practice, this may mean the need to:

• specifying the list of activities that the agent undertakes to perform (e.g. preparing advertisements, organising property viewings, analysing the legal status),
• define the moment when the obligation to pay remuneration arises,
• indicate whether remuneration is also due in the event that the transaction takes place directly between the client and the person with whom the agent has established contact, in a situation where the final transaction takes place without the agent’s participation, i.e. the parties agree among themselves, bypassing the agency,

The absence of such provisions may lead to disputes, and the content of Article 179b of the Polish Real Estate Management Act favours the agent. It is therefore advisable to ensure that the provisions are clear in order to avoid misunderstandings as to the scope of obligations and the moment when the agent’s remuneration becomes due.

Failure to define the actions (actual activities) to be taken by the agent

A potential problem may be the failure to define in the contract the activities that the agent should undertake in accordance with the agency agreement, which may give rise to potential problems. Failure to precisely define the scope of duties may result in:

• divergent expectations of the parties, i.e. the client may expect comprehensive service (e.g. negotiation of contract terms, assistance in finalising the transaction), while the agent will limit himself to placing property advertisements on popular websites and showing the property to potential buyers,
• difficulty in assessing the proper performance of the contract, given that without specifying specific actions, it is impossible to determine unequivocally whether the intermediary has indeed exercised due diligence,
• and, as a consequence of the above circumstances, a dispute over the legitimacy of remuneration, given that the client may question the obligation to pay, claiming that the intermediary did not perform any specific actions, and the intermediary may claim that they acted in accordance with market practice.

Consequently, it seems crucial to specify precisely what actions the agent should take. In practice, however, this is often not the case. For example, a real estate brokerage agreement should specify whether the broker is to arrange meetings with potential clients, whether they are also to participate in them, and whether they are to actively search for properties that meet the client’s expectations in terms of their parameters. As a result, the client may be obliged to pay the agent’s fee even though the agent has not performed all the activities expected by the client. This is because the real estate sale agreement was concluded thanks to the opportunity created by the agent, even if their effort was minimal.

A situation that is definitely unfavourable for the client is when the agent only sends the client a link to an advertisement that is also publicly available on an internet portal, without taking any further action, such as organising a presentation, contacting the seller or analysing the legal status of the property. However, if, as a result of this minimal activity, the client decides to purchase the property, they may be obliged to pay the agent’s fee, even though the agent has not met their expectations regarding the scope of services provided. This situation usually results from an imprecisely worded contract which does not indicate that the agent was to, for example, actively search for offers, present proposals meeting specific criteria or participate in negotiations.

Reimbursement of expenses incurred by the real estate agent in Poland

According to the current prevailing line of Polish jurisprudence, the agent is not, as a rule, entitled to demand reimbursement of expenses incurred in connection with real estate brokerage in Poland. This applies in particular to costs such as:

• travel to view the property,
• publication of advertisements on popular advertising portals, including costs related to promoting the advertisement (boosting), i.e. paid highlighting of the advertisement on advertising portals,
• costs of photographic or video services for the property (e.g. hiring a photographer, creating a 3D walkthrough),
• costs of printing promotional materials, leaflets, advertising boards, etc.
• expenses for participation in real estate fairs, if the offer was presented there,
• preparation of a professional property valuation, if commissioned to a property appraiser at the agent’s expense.

If the agent wants to be able to claim reimbursement of certain costs from the client, they should ensure that the contract clearly states that certain expenses will be re-invoiced or covered by the client. Otherwise, it is assumed that they are included in the risk of running the business and in the agreed remuneration.

A practical example from Polish case law:

‘(…) the entire economic risk rests with the agent, who, as a rule, is not even entitled to reimbursement of expenses incurred’ (the Polish Supreme Court ruling of 24 April 2024, ref. no. I CSK 789/24).

Right to withdraw from a real estate brokerage agreement in Poland

Most brokerage agreements in Poland are concluded in a hurry, often just before viewing the property, outside the estate agency’s office. It is worth remembering that a real estate brokerage agreement concluded outside the broker’s premises or remotely can be withdrawn within 14 days without giving any reason and without incurring any costs. The exception is when the agent, with the client’s consent, has already taken action covered by the agreement before the expiry of this period – in this case, withdrawal from the agreement will no longer be possible and, depending on the contractual provisions, may lead to the need to pay remuneration to the agent.

Therefore, it is important to clearly specify in the contract the rules for commencing the provision of services and the consequences of withdrawing from the contract, which will avoid misunderstandings and disputes with clients.

The right to terminate a real estate brokerage agreement in Poland

Termination of a brokerage agreement is possible under the provisions of the Polish Civil Code concerning agency agreements as applied to real estate brokerage in Poland. In order to assess the possibility of terminating a real estate brokerage agreement, it is important to determine whether it was concluded for a definite or indefinite period.

If a real estate brokerage agreement has been concluded for an indefinite period, pursuant to Article 7641 of the Polish Civil Code, it may be terminated one month in advance in the first year of its duration, two months in advance in the second year, and three months in advance in the case of agreements lasting three years or longer. However, termination of the agreement does not protect the client from the obligation to pay remuneration to the agent if they concluded a sale agreement as a result of actions taken by such an agent, which were aimed at concluding an agreement by the client. The time that has elapsed since the termination of the agreement is irrelevant, but in such a case the agent must prove that the agreement was concluded as a result of actions taken by him, e.g. as a result of his bringing the buyer and the seller together, the agreement was concluded on the terms of the offer obtained by the agent.

Abusive clauses in real estate brokerage contracts in Poland

In Polish real estate brokerage agreements, particular attention should be paid to provisions that may be considered abusive (prohibited) clauses, i.e. those that are not binding on the consumer by law. In practice, real estate agencies often use provisions that are unfavourable to (unaware) customers, which can then be effectively challenged in court as contrary to good practice and grossly violating the interests of the consumer. The most common abusive clauses in real estate brokerage contracts in Poland include:

• automatic extension of the agency agreement – provisions which, without the express consent of the customer, extend the agreement for further periods, often without the possibility of terminating it within a reasonable period of time,

• obligation of the customer to pay remuneration to the intermediary despite the lack of a transaction, without a clear definition of the scope of activities performed by the intermediary and without justification of the amount of remuneration,
• provisions prohibiting withdrawal from the contract or limiting the right of withdrawal in the case of distance contracts or contracts concluded outside the business premises,
• unilateral rights of the intermediary to change the terms of the contract (e.g. the amount of commission) without the customer’s consent,
• exclusivity for the intermediary to collect remuneration for transactions concluded with third parties, even if the intermediary did not participate in their conclusion, without an explicit and unambiguous provision,
• excessively broad limitations on the agent’s liability for errors, omissions or failure to perform their duties,
• prohibiting the client from contacting the property owner indicated by the agent without their express consent.

Summary

Understanding how real estate agency remuneration works under Polish law is essential for anyone buying, selling or renting property in Poland. Using the services of a real estate agent in Poland is undoubtedly convenient for people who do not have the time, do not have sufficient knowledge of the real estate market or do not feel confident in searching for a suitable property on their own.

Concluding a real estate brokerage agreement in Poland seems simple at first glance, requiring little attention, but in practice it can have serious financial consequences for the parties involved if they are not fully aware of the terms of the agreement.

When concluding a real estate brokerage agreement, it is important to clearly define the terms of cooperation, as well as the amount of remuneration, its form and the time of payment. It is worth remembering that, due to the principle of freedom of contract set out in the Civil Code, a brokerage agreement may be subject to negotiation by the client, and the scope of obligations of both parties may be largely determined at will.

Verification and negotiation of the provisions of a real estate brokerage agreement can protect a potential client from unfavourable provisions, such as the obligation to pay remuneration despite the absence of a transaction, an excessively long period of exclusivity, or restrictions on the right to withdraw from the agreement.

A conscious approach to the content of the agreement allows you to avoid legal risks and unforeseen costs, and also ensures better control over the scope and quality of services provided. It is worth making an effort to ensure that the agreement is safe for us and, above all, understandable and clearly defines our rights and obligations in cooperation with the real estate agency.