Waiver of claims in a Polish notarial deed – rights of a buyer

Contractual penalty for the developer’s delay

The contractual penalty serves as a simplified compensation mechanism. The purchaser of the property is not required to demonstrate the actual amount of the loss incurred; it is sufficient to establish that the deadline for concluding the agreement transferring ownership of the property has expired, whilst the developer has failed to arrange for the signing of the notarial deed within the stipulated time. This allows property buyers to assert their rights quickly and effectively without additional evidential complications.

Consequently, claims for contractual penalties against developers in Poland are, in practice, relatively successfully pursued in court, and the damages awarded often amount to tens of thousands of zlotys. In one of the largest cases we have handled, the damages awarded, including interest, exceeded PLN 200,000, which a Warsaw-based developer was ordered to pay to the property owner pursuant to a final and binding judgment.

Further practical information on the application of contractual penalties and the protection of buyers’ rights can be found in the publication “Contractual penalty for developer delay in Poland“. 

At the same time, it should be noted that a provision in a development contract which, in practice, excludes or significantly limits the purchaser’s claims to the amount of the contractual penalty may be deemed an unfair term. In such a case, this provision is not binding on the purchaser, and the client may claim full compensation in accordance with the general principles of contractual liability. Polish case law confirms that such limitations may be unenforceable against consumers if they constitute an unfair contract term.

A practical example from Polish case law:

“Since contractual provisions making the obligation to pay a contractual penalty conditional upon the seller’s failure to meet the performance deadline, limiting its amount and providing for the waiver of all claims arising from the concluded contracts, are unlawful and unenforceable, then, in view of the proven fact that the defendant was in default for the period from 1 July 2008 to 30 November 2008, the defendant is obliged to pay the plaintiffs a contractual penalty equal to the statutory interest for the period of default, calculated on the gross price of the premises” (judgment of the Polish Court of Appeal in Warsaw, 1st Civil Division, dated 17 July 2013, ref. no. I ACa 125/13).

Attempts by developers to force the waiver of claims

In market practice, however, a slightly different—though ultimately similar—situation often arises, as highlighted by the Polish President of the Office of Competition and Consumer Protection (UOKiK) in a recent statement dated 9 March 2026 entitled “Aggressive market practices by developers – President of UOKiK brings charges“. These are situations where:

• the date for concluding the contract for the transfer of ownership of the property is delayed,
• the developer is usually aware of the inevitable obligation to pay contractual penalties to the buyers of the properties,
• the developer sends letters to property buyers containing a unilateral “offer” to release the company from liability for the delay. In other words, buyers are expected to waive their right to pursue claims against the developer.

Our experience shows that such actions taken by developers towards their clients occur quite frequently, particularly in the case of smaller and medium-sized developers.

Why do buyers agree to waive their claims against the developer?

In practice, these actions are often more forceful in nature. Developers simply ‘inform’ property buyers that either the deed of transfer will be signed in the imposed form (i.e. including the clause on the buyer’s waiver of claims), or the transfer of ownership will not take place at all.

Why is this happening? In our view, in many cases developers deliberately set unrealistic deadlines for the transfer of ownership in development contracts in Poland, as this allows them to sell the properties in the development as quickly as possible. Some developers set deadlines which, in practice, prove difficult to meet or are simply unrealistic. At the same time, they are aware that buyers are keen to move into their new home quickly, for example due to family or housing circumstances. This can lead to situations where buyers are misled as early as the stage of signing the development contract.

Subsequently, when a delay in the transfer of ownership arises, contacting the developer becomes increasingly difficult. The sales office does not provide binding information, and along with the deed of transfer, buyers are presented with a ‘proposal’ to waive all claims arising from the delay. As indicated above, when presenting a draft transfer of ownership agreement containing a waiver clause, the developer often states explicitly that the agreement is ‘non-negotiable’. This practice is intended to force the acceptance of terms that are solely favourable to the developer, even if the buyers are aware that such a waiver of claims is significantly disadvantageous and restricts their statutory rights under the Polish Development Act and the Civil Code.

It is also often the case that, even before the transfer of ownership agreement is signed, the property is already in the buyers’ possession; they have received the keys and have started using the flat. In many cases, buyers incur significant financial outlay even before signing the transfer of ownership agreement, adapting the property to their needs, for example by carrying out a complete refurbishment, purchasing furnishings or carrying out finishing works.

In such a situation, the buyers are particularly keen to ensure the transfer of ownership of the property. For this reason, they are sometimes willing to enter into the agreement even at the cost of waiving some of their claims against the developer, in order to finally become the owners of the flat. This is easy to understand – for many people, the purchase of a flat and the costs of adapting it constitute an investment financed by a long-term loan and often involve savings accumulated over a lifetime.

Consequently, many buyers find themselves in a situation where, by refusing to sign the contract in the form proposed by the developer (and in practice – imposed), they risk the property not being transferred to them, whereas by signing it, they may, knowingly or unknowingly, waive their legitimate claims.

Such actions exert unacceptable pressure on property buyers, contrary to the principles of consumer protection. Unfortunately, in many situations, such actions on the part of the developer are effective.

Is it possible to transfer ownership of a property without waiving claims?

In practice, however, there are effective legal remedies which we have tested in court on numerous occasions that allow for the transfer of ownership of a property without the purchaser having to waive their claims. We have repeatedly demonstrated that even in situations where a developer employs practices aimed at forcing a waiver of rights, the courts award buyers full compensation. As a result, buyers become the owners of the premises whilst also receiving the compensation due to them.

It is therefore to be welcomed that the Polish President of the Office of Competition and Consumer Protection (UOKiK) has drawn attention to such practices employed by developers. It is regrettable, however, that proceedings have been initiated against only one developer, as our experience shows that there are many more entities operating in the market that use similar mechanisms, exerting unacceptable pressure on property buyers.

Of course, we must await the final decision of the Polish President of the Office of Competition and Consumer Protection (UOKiK) on the matter, but the very fact that attention has been drawn to such practices is a positive sign for many buyers. This may also serve as an argument in court proceedings against developers, confirming that practices exerting pressure on buyers are unacceptable from the point of view of the law and consumer protection.

Is a waiver of claims included in a notarial deed legally effective?

The effectiveness of a waiver of claims arises in many court proceedings handled by our law firm. Developers, aware that they are unlikely to establish circumstances releasing them from liability for delay in court proceedings, often take steps aimed at “persuading” purchasers to give up the claims to which they are entitled.

However, courts approach such declarations with particular caution. They examine not only the wording of the waiver itself but, above all, the circumstances in which it was made. Under normal circumstances, a purchaser would not give up contractual penalties or damages, often amounting to tens of thousands of Polish zlotys, without receiving anything in return from the developer. This is precisely why courts scrutinise such waivers carefully and seek to establish the purchasers’ actual reasons for making them.

Therefore, if the waiver was imposed by the developer and the conclusion of the agreement transferring ownership was made conditional upon its submission, there may be grounds for challenging the legal effectiveness of the waiver.

This does not, of course, mean that every waiver of claims included in a notarial deed is automatically defective or ineffective. Each case requires an individual assessment of the wording of the notarial deed, the course of the negotiations, the parties’ correspondence and respective bargaining positions, and the nature of the pressure exerted on the purchasers. In our experience, a particularly important consideration is whether the developer expressly stated that it would not enter into the agreement unless the purchaser waived their claims, even though it was already obliged to transfer ownership of the property. In such circumstances, it is difficult to conclude that the waiver was made voluntarily.

In certain cases, the purchaser may also rely on the provisions concerning defects in declarations of intent and rescind the legal effects of a declaration made under an unlawful threat by the developer. In this context, the threat may consist of the risk that ownership of the property will not be transferred. This mechanism protects a person who made a declaration under pressure that gave rise to a justified fear of serious personal or financial harm. Rescinding the legal effects of such a declaration requires compliance with the form and time limit prescribed by law. The notarial deed and the circumstances in which it was executed should therefore be reviewed without delay.

What should you do if the developer sends you a draft agreement containing a waiver of claims?

First, you should ask the developer to explain why the draft notarial deed contains a declaration under which the purchasers are required to waive their claims. In our experience, the developer may respond that “the delay was caused by circumstances beyond our control, so such a declaration should be included to clarify the legal position.” Alternatively, the developer may present the purchasers with an ultimatum: “if you do not agree to waive your claims, we will not enter into the agreement transferring ownership.”

You should then clearly challenge the provision in your correspondence and inform the developer that the purchasers do not consent to waiving their claims. The developer may, of course, put forward further arguments, but the purchasers’ position should remain unchanged.

It is particularly important to retain all correspondence with the developer, as it may subsequently constitute important evidence in court proceedings. If the correspondence shows that the developer made the conclusion of the agreement transferring ownership conditional upon the waiver of claims, this may confirm that the declaration was not made freely but resulted from pressure exerted on the purchasers.

At this stage, it is worth considering obtaining legal assistance to formulate an appropriate response to the developer and collect evidence that may prove relevant in subsequent court proceedings.