Reservation agreement with a developer – rules, reservation fee and legal consequences

A reservation agreement with a developer in Poland is often the first document signed when purchasing a flat from a developer. According to the statutory definition in Article 29(2) of the Polish Development Act, a reservation agreement is an agreement between a developer and a person interested in the sale of a flat or a single-family house, the subject of which is the obligation to temporarily exclude from the sale offer the flat or single-family house selected by the person making the reservation.

In this article, we explain:

• when is a reservation agreement concluded when purchasing a flat from a developer?
• does a reservation agreement oblige you to purchase a flat?
• can a reservation agreement with a developer be negotiated?
• how should ‘temporary exclusion of the selected property from the developer’s offer’ be understood?
• for what period is a reservation agreement concluded?
• can the subject of a reservation agreement only be a flat or a single-family house?
• how to precisely define the subject of a reservation agreement?
• what is a reservation fee and how much is it?
• what are the most common mistakes made when signing a reservation agreement with a developer?

When is a reservation agreement concluded with a developer when purchasing a flat in Poland?

In Poland the reservation agreement precedes the conclusion of the development agreement. Therefore, in order to answer the above question, one must first refer to the structure of the development agreement provided for in the Polish Development Act. This agreement is not a simple contract of obligation that can be concluded by the buyer and the developer at any time. The possibility of concluding it is strictly linked to a specific stage of the development project and the developer’s fulfilment of a number of formal conditions.

On the developer’s side, in practice, a development agreement can be concluded when the property has not yet been built or is under construction, but the developer has not yet obtained a use permit. This means that the developer must have a valid legal title to the property, obtain a building permit and open a residential escrow account. Only then can they conclude a development agreement with the buyer.

From the buyer’s perspective, however, the obstacles to concluding a development agreement are generally of a financial or organisational nature. Very often, the buyer has already chosen a specific property in a planned or ongoing development, but is waiting for confirmation of a mortgage from the bank or for financing for the purchase, for example by selling their current property.

In such situations, both parties, i.e. the developer and the buyer, intend to conclude a development agreement, but there are objective circumstances on one or both sides that preclude this possibility.

It is then that the parties may decide to conclude a reservation agreement. Its purpose is to temporarily exclude the selected premises from the developer’s offer and to ensure the reserving party priority of purchase during the period when it is not yet possible to conclude a development agreement. In addition, a reservation agreement with a developer also allows for the preliminary determination of key elements of the future development agreement, such as price, standard of finish and planned payment schedule.

Of course, the conclusion of a reservation agreement is not mandatory, and in some situations where the obstacles described above do not exist, the parties may decide to conclude a development agreement without a preceding reservation agreement.

Does a reservation agreement with a developer in Poland oblige you to purchase a flat?

A question that often arises in practice is whether the conclusion of a reservation agreement obliges the parties to conclude the development agreement that precedes it. This is particularly important in situations where:

–    the buyers’ preferences regarding the flat/house change,

–    the buyers do not obtain financing for the transaction,

–    buyers consider the terms of the transaction to be unfavourable.

However, a reservation agreement with a developer does not oblige the parties to conclude a development agreement, a preliminary agreement for the establishment of separate ownership of the premises and sale, or a sale agreement. The main obligation of the parties remains only the temporary exclusion of the selected premises from the developer’s sale offer, and not the obligation to conclude another agreement.

However, if the reservation agreement contains an obligation to purchase a flat or house in Poland, it should be considered that this is not in fact a reservation agreement, but an unnamed mixed agreement containing only elements of a reservation agreement.

Can a reservation agreement with a developer in Poland be negotiated?

A reservation agreement in Poland may be subject to negotiation, as are most agreements under Polish law (the only exceptions are so-called adhesion agreements, i.e. accession agreements, for example agreements concluded with banks or telecommunications service providers). Although buyers often believe, and developers reinforce this mistaken belief, that a reservation agreement with a developer is not negotiable, this is not actually true.

In practice, the most common issues that should be negotiated between the parties to a development agreement in Poland are:

• the amount of the reservation fee – as a rule, the buyer will want the reservation fee to be as low as possible, while the developer will strive to bring it closer to the upper statutory limit specified in Article 32(2) of the Polish Development Act, i.e. 1% of the price of the flat or single-family house;

• the period for which the residential premises or single-family house selected by the person making the reservation will be excluded from the sale offer – buyers often want this period to be as long as possible, e.g. when they are in the process of selling their own property, the proceeds of which they plan to use to finance the purchase of the premises or house covered by the reservation agreement,

• the price of the flat – for obvious reasons, the buyer will want the lowest possible price for the flat.

How should ‘temporary exclusion of the selected flat from the developer’s offer for sale’ be understood?

The Polish Development Act does not define this term explicitly. However, in practice, it seems to mean that for the period specified in the reservation agreement, the developer:

• will not enter into a development agreement with another entity,
• will not offer the flat to other potential buyers as available for purchase during the period of exclusion from sale,
• will not conduct active sales activities concerning the premises.

In other words, during the reservation period specified in the reservation agreement, the flat or detached house may not be the subject of any agreement concluded with another reserving party or purchaser, as a result of which the reserving party would not be able to exercise its priority right to purchase the flat or detached house.

Of course, if during the period of ‘temporary exclusion from sale’ no development agreement is concluded between the parties to the reservation agreement, the developer may take any action with respect to the premises, which will return to normal trading.

It is also important that if the developer breaches its obligations under the reservation agreement, i.e. sells the property to another person, the original purchaser has no right to demand the conclusion of a development agreement or the transfer of ownership of the premises. Their only claim is for damages.

For what period is a reservation agreement concluded with a developer in Poland?

A reservation agreement in Poland should strictly specify its term, i.e. the period for which the property is excluded from sale. This is one of the so-called essential elements of a reservation agreement (essentialia negotii).

The Polish Development Act does not define a specific period for which the parties are required to conclude a reservation agreement, although it is clear from the wording of the Act that this period must be specified in the agreement. The provision may therefore take the following form, for example:

‘The developer undertakes to temporarily exclude from sale residential premises No. 1, located in building B, constructed as part of the ’Osiedle Zielone‘ development project, situated on the property located in Warsaw at ul. Zielona 10, constituting plot No. 123/4, precinct 1-02-03.’

However, if the purchase of the property is financed by a mortgage loan, the Polish Development Act stipulates that the reservation period should take into account the time necessary to obtain a credit decision (Article 14(2)) or a promise to grant a loan (Article 3(1)) within the meaning of the Polish Act on Mortgage Loans and Supervision of Mortgage Brokers and Agents. The provision of the Polish Mortgage Loan Act referred to in the Polish Development Act stipulates that the credit decision should be communicated to the consumer within 21 days of receipt of the complete credit application in Poland.

In practice, however, there is sometimes a problem with the contract not specifying the period for which it was concluded. This is usually due to negligence in drafting the contract, the fact that under the previous legal regime this obligation did not exist, or the fact that the parties agreed on the term orally ‘outside the contract’, considering it obvious and not specifying it explicitly in the contract. The parties may also be unsure of the period for which they wish to be bound by the reservation contract.

It may then be questionable whether, in light of the fact that the term is one of the essential elements of the reservation agreement in Poland and the parties did not include it, a binding agreement was concluded at all. However, it seems that it was. This interpretation is consistent with the views of legal doctrine, which indicate that, in accordance with the principle of benevolent interpretation of contracts (benigna interpretatio), the declarations of will of the parties should, as far as possible, be interpreted in such a way as to maintain the effectiveness of the concluded contract.

This means that even if certain essential elements are not explicitly stated in the content of the agreement (e.g. the booking period), an attempt can be made to determine their meaning on the basis of the overall circumstances and the mutual intention of the parties. Only when such an interpretation proves impossible is it reasonable to assume that the parties did not conclude a contract of a given type (see: A. Brzozowski, in: System PrPryw, vol. 5, 2020, p. 501).

Consequently, if, in a hypothetical case, the reservation agreement does not specify its term, but the purpose of the agreement is clear – it is to obtain a loan by the buyer – then it should be assumed that the reservation agreement with the developer was concluded for a period corresponding to the minimum statutory term of the loan procedure, i.e. 21 days.

Can the subject of a reservation agreement with a developer be only a residential premises or a single-family house?

Unfortunately, there is no consensus on this issue in legal doctrine. Some commentators [B. Gliniecki, Ustawa deweloperska [The Polish Development Act], 2024, pp. 229-231] point out that only a residential premises or a single-family house selected by the person making the reservation may be the subject of the reservation, and that the reservation of commercial premises (a share in commercial premises) may be made by way of a different agreement.

However, according to a different view [Machnikowski (ed.), Act on the Protection of the Rights of Purchasers of Residential Premises or Single-Family Houses and the Developer Guarantee Fund. Commentary [in:] Obligations. Volume V. Non-code provisions. Commentary, 1st edition, 2025], the subject of the reservation may also be commercial premises, which results from the broad interpretation of Article 29(1) of the Polish Development Act.

Consequently, in practice, it should be taken into account that the admissibility of reserving commercial premises remains a contentious issue. From the point of view of legal certainty for the parties, if the subject matter were to be commercial premises, in such a case it would be safer to conclude a preliminary agreement.

How to precisely define the subject matter of a reservation agreement with a developer?

The general rule is that the more precise, the better, but in practice this will not always be possible. This is primarily because a reservation agreement may also relate to premises or a house that does not exist at the time of concluding the reservation agreement (a so-called ‘future thing’), which will only be built in the future as a result of a development project carried out by the developer. A contractual provision that precisely defines the subject matter of the reservation agreement may be, for example:

1. The developer is the owner of the property covered by land and mortgage register LD1M/00000001/1, in which plots No. 7/8 and 9/10 with a total area of 3.3800 ha are entered, located in the city of Łódź, at Inwestycyjna Street, Łódź Miasto municipality, on which it is carrying out an investment project involving the construction of single-family residential buildings, in which it will be possible to separate independent residential premises under the name ‘Zielony Las Development Project’ (hereinafter referred to as the Investment),
2. as part of the implementation of the Development, it obtained a building permit issued on 2 February 2026 by the Mayor of Łódź and covered by decision No. XYZ-I.2026,
3. as a result of the implementation of the Development, it plans to establish separate ownership of the premises on the terms specified in the Act on the Ownership of Premises and to ensure the right to use parking spaces on the basis of a so-called agreement on the division of real estate for use quoad usum,
4. The parties conclude a reservation agreement under which the Developer undertakes to exclude from the sale offer, for a period of 6 months, premises No. 1 with a planned area of 100 m² in building No. 2B, on a plot with a planned area of 9,000 m², for the price of PLN 1,000,000.

What is a reservation fee under Polish law and how much is it?

The reservation fee is an optional provision of the reservation agreement (Article 32(1) of the Polish Act), but in practice its inclusion in the agreement is standard market practice. If the parties agree that the reserving party is obliged to pay a reservation fee, the amount of this fee must be specified in the agreement. The amount of the reservation fee is limited by Article 32(2) of the Polish Act, which stipulates that the reservation fee may not exceed 1% of the price of the flat or single-family house specified in the information prospectus.

The purpose of the reservation fee is primarily to secure the developer’s interest by allowing the flat or house to be excluded from the sale offer for a specified period of time, as well as to express the seriousness of the reserving party’s intention.

If, after concluding the reservation agreement, the parties decide to conclude a development agreement, the reservation fee will be credited towards the purchase price of the rights under the development agreement.

However, if the developer fails to perform its obligation under the reservation agreement, it is obliged to refund the reservation fee in double the amount.

When is the reservation fee refundable? Detailed information on the developer’s obligation to refund the reservation fee is provided in this publication.

What are the most common mistakes made when signing a reservation agreement with a developer?

A reservation agreement in Poland is usually a short document. Despite this, buyers of premises may make mistakes at this stage that could potentially have real financial or organisational consequences. In particular, this may occur when buyers treat the reservation agreement merely as a formality preceding the conclusion of the development agreement, without carefully analysing its content and the obligations of the parties. In our experience, the most common mistakes related to reservation agreements include:

1)    failure to verify the amount of the reservation fee

Buyers often conclude reservation agreements without checking whether the reservation fee has been determined in accordance with the Polish Development Act. According to the regulations, the amount of the reservation fee may not exceed 1% of the price of a flat or a single-family house indicated in the information prospectus. A higher fee will therefore be contrary to the provisions of the Polish Development Act.

2)    too short a reservation period for the property

In practice, developers often offer a reservation period of, for example, 7–14 days, which in many cases proves to be insufficient, especially when the purchase of the property is to be financed by a mortgage.

3)    lack of a clear indication of the price of the property

In practice, there are also reservation agreements that do not clearly indicate the price of the residential property, limiting themselves, for example, to a general reference to the information prospectus or the developer’s current price list. This can raise serious doubts, as the price of the property may change between the signing of the reservation agreement and the conclusion of the development agreement, and the buyer is then unsure whether the price indicated in the subsequent agreement will be the same as at the time of reservation.

From the point of view of buyer security, the price should be clearly stated in the reservation agreement. Ideally, it should also include: information about VAT, the price of a parking space or storage room (if offered), and any conditions for price changes (the price indexation mechanism in the development agreement is described in more detail in this publication).

4)    no reference to the situation where the person making the reservation does not obtain a mortgage

This is probably one of the most serious errors in a reservation agreement. In a situation where the purchase of a flat is to be financed by a mortgage loan, it is advisable to include provisions in the reservation agreement that clearly state that if the bank refuses to grant the loan, the reservation fee will be refunded.

5)    lack of precise specification of the subject of the reservation

Another mistake is not specifying the property to be reserved in detail. Situations where the agreement does not include the property number, its planned area, building or floor designation, information about associated parking spaces or storage rooms can be particularly problematic.

Summary

A reservation agreement under Polish law is a legal instrument that allows for the temporary ‘blocking’ of a selected residential property or single-family house in a developer’s offer before the conclusion of the actual development agreement. Its primary purpose is not to oblige the parties to conclude a contract transferring ownership of the property, but to create a transitional period during which the reserving party can prepare for the transaction, most often by obtaining financing or selling another property.

From the buyer’s point of view, it is crucial to carefully analyse the provisions of the reservation agreement before signing it. In particular, attention should be paid to the amount of the reservation fee, the duration of the reservation, the manner of determining the subject matter of the agreement and the consequences of the developer’s failure to perform its obligations. Although in practice this document is often presented as a ‘standard form’, in reality its provisions may be subject to negotiation.