Contributed by Penteris.
1. REAL ESTATE OWNERSHIP
1.1 Legal framework
Ownership right, including the ownership right to property, has its source in Article 21 and Article 64 of the Constitution of the Republic of Poland. The first provision guarantees the protection of the ownership right to property and the right of inheritance. Expropriation is permitted only when it is undertaken for public purposes and for fair compensation. The second provision of the Constitution provides that all people can equally enjoy property ownership rights and other property rights, as well as the rights of inheritance. The ownership right to property is subject to equal legal protection for all, and its restrictions may be imposed only by statute and only to the extent not infringing the essence of the ownership right to property. The most important laws regulating ownership right in Poland are the Property Law section in the Civil Code, as well as the Act on Ownership of Premises, the Act on Land and Mortgage Registers, and others. These Acts are stable, rarely subject to changes as far as systemic solutions are concerned, and have been functioning in the Polish legal system for years.
Apart from the traditional definition of the ownership right to property, in Poland, there are also quasi-property rights, such as the right of perpetual usufruct and the cooperative ownership right to premises. As a rule, the right of perpetual usufruct is usually established for a period of 99 years (sometimes less but not less than 40 years) on land owned by the State Treasury or local government units. Another characteristic feature of the right of perpetual usufruct that distinguishes it from the ownership right to property is the obligation of the perpetual usufructuary to pay an annual fee. As of January 1, 2019, the right of perpetual usufruct of real estate on which residential premises and single-family residential buildings are located was transformed into ownership. However, this transformation did not extend to non-residential premises. The cooperative ownership right to premises, which is a limited property right, is now of marginal importance and is a relic from the time of cooperative premises. No new cooperative ownership right to premises may be established after 2007.
Citizens of all countries from the European Economic Area and Switzerland may acquire property in Poland on the same basis (with minor exceptions) as Polish citizens. Other foreigners, in order to acquire property in Poland, need the consent of the Minister of Internal Affairs.
In regard to expropriation, in addition to the aforementioned constitutional protective principles, it should be noted that property can only be expropriated for the benefit of the State Treasury or local government units. The expropriation procedure must be preceded by negotiations between the expropriated person and the expropriator, in a legally required attempt to reach an agreement. If the negotiations fail, the proper expropriation procedure begins. The amount of compensation for expropriation is determined based on the market value of the property. In addition to Chapter 4 of the Property Management Act, the relevant rules for expropriation are set out in Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, ratified by Poland. The principles of expropriation are clear and, as a rule, the business solution to expropriation must be first sought while the typical administrative procedure begins only if a business solution is not reached.
The most recent legislative trends observed in Poland include the increased protection of purchasers of residential premises as well as an extension of the protection to purchasers of non-residential premises by the New Development Act, which will come into force in July 2022. In terms of market trends, the biggest winners of the COVID-19 pandemic in Poland are logistics parks, which are opening with the greatest frequency seen in recent years. Offices are slowly returning to the pre-pandemic situation. In the shopping center sector, there has been a noticeable shift in investor attention from large-scale shopping centers to convenience centers.
1.2 Registration of ownership
The public Land and Mortgage Register (LMR) is maintained by the Land and Mortgage Register Departments of the District Courts. The functioning of the LMR is regulated by the Act on Land and Mortgage Registers. The register obligatorily contains such information as the designation of the property, designation of the owner, and legal title to the property. The LMR may disclose property rights of third parties restricting the use of property, mortgages on property, the right of pre-emption, the right of the lease, and the right of life-annuity.
1.3 Publicity of real estate register
Entries in the LMR are publicly accessible electronically. The current and full content of the LMR is available for all.
1.4 Protection of ownership
Entries in the LMR are effective through a broad range of legal protection which includes: 1) the principle of transparency, 2) the principle of presumption of conformity of the contents of the LMR with actual legal status, 3) the principle of the public credibility guarantee of the LMR, and 4) the priority of rights entered in the LMR.
The principle of transparency consists of access to current entries in the LMR for everyone. This principle does not apply to supportive documents gathered in the files of the LMR. These files may be seen only by someone who has a legal interest therein or a notary public since it may include commercially sensitive data such as purchase prices. Due to the fact that the LMR are public, generally, a plea of no ignorance of the contents of the LMR would not be admissible in courts. The principle of presumption of conformity of the content of the LMR with actual legal status follows the legally prevailing assumption that what is registered in the LMR legally exists, and what is deleted from it does not. The principle of public credibility of the LMR consists in resolving that in the case of discrepancies between the legal status of a property disclosed in the LMR and actual legal status, the contents of the LMR prevail. The principle of priority of entered rights provides that a limited property right on property disclosed in the LMR has priority over such a right not disclosed in the LMR. To sum up, only facts established based on data included in the LMR are binding in economic relations. Therefore, entries in the LMR extensively and effectively protect property owners and third parties.
In the case of unauthorized use of real property, an owner has a claim for delivery of the property, and in case of a violation of the property in a manner other than depriving the owner of the actual possession of the property, the owner has a claim for restitution of the legal status and cessation of the violation. Both these claims have their basis in the Civil Code.
2. REAL ESTATE ACQUISTION
2.1 Share deal or asset deal?
In current market practice, investors are increasingly often choosing to acquire property-owning companies through a share deal, less often choosing to acquire the asset itself through an asset deal.
Share deals are particularly interesting for investors who are buying a portfolio of property, by being able to purchase several properties held by a company selling the shares, with a single document. Moreover, the public fees associated with a share deal are lower, the acquisition of shares is taxed with a PCC of 2% rather than VAT at a rate of 23%. VAT in the case of an asset deal is generally refundable, but this can take several months, during which time the buyer has to finance the tax amount. Share deals are also beneficial for cross-border purchases, avoiding Polish transaction fees.
In the case of the acquisition of property in the form of a share deal, in which companies are merged, divided, or transformed, the acquisition of property is not protected by the guarantee of public credibility of the Land and Mortgage Register (LMR). The great advantage of share deals, however, is that the acquisition of property is not restricted by statutory pre-emption rights, which apply in the case of asset deal transactions.
On the other hand, the purchase of legal title to a property in the form of an asset deal provides the purchaser with protection under the guarantee of public credibility of the LMR which protects the purchaser who has entered into a legal transaction with a person entitled according to the contents of the LMR. The purchase of property is covered by the guarantee if conducted as a transaction for consideration and if the purchaser of the property acts in good faith. Due to the guarantee of public credibility of LMR registers, the extent of due diligence on the property is narrower than in the case of a share deal and thus typically faster and involves smaller fees.
When choosing the type of transaction, particular benefits and limitations are described in 2.2. and 2.3. should also be taken into account.
2.2 Share deal
In share deal transactions, the subject of the sale is the company's shares. Thus, the buyer becomes the owner of the shares and indirectly acquires rights to all assets of the acquired company.
The acquisition of the company's shares takes place by concluding a share purchase agreement, which should be concluded in writing with notarized signatures. In this type of transaction, the assets of the company do not change and the company still remains the subject of its rights and obligations. This type of transaction is particularly beneficial for entities deciding to acquire shares in a company conducting a regulated activity and consequently holding appropriate concessions, licenses, and permits. The form of the share deal is also chosen by investors who have funds located in different sectors of the economy.
After concluding a share deal transaction, the Register of Entrepreneurs of the National Court Register should be notified of a change in a company's shareholder; the cost is PLN 350 (approximately EUR 80). As far as the taxation of the transaction is concerned, the income is taxed at the level of the disposing shareholder who receives a price for shares. For the company in which the shares are sold the share deal transaction is generally tax neutral, however, in the case of a cross-border sale, the company remains liable for withholding tax payable by the foreign seller unless the tax is excluded under a double tax treaty concluded with the country of residence of the seller.
In the case of a decision to purchase property as part of a share deal transaction, a due diligence process is broader since it must not only cover the validity of the title to the property held by the company in which the shares are purchased but also generally the legal status of the company and the status of its affairs.
2.3 Asset deal
An asset deal should be understood as a transaction to acquire the title of a property.
With an asset deal transaction, the purchaser does not enter into the corporate structure of the company, the selling company is a party to the sale agreement of a property. The acquisition of a property in the form of an asset deal should be made before a notary public who prepares the conveyance notarial deed and countersigns it together with both parties to the transaction.
If the disposing party is a corporation, typical consent of shareholders for disposal is required. The lack of such a resolution renders the sale of the real property null and void.
For asset deal transactions, the taxpayer is the company selling the property. The taxable income is the difference between the sale price of the property and the tax value of the assets, which corresponds to the expenses for the acquisition of the assets comprising the business after depreciation.
Due to the fact that, as a rule, the transfer of real property automatically transfers all leases affecting the property, the sale of commercial property let to tenants is not easily distinguishable from the sale of a business including a property. As mentioned above, the sale of a property (asset) is subject to VAT at 23% which is returnable while the sale of a business is subject to 2% PCC which is a non-refundable fee. To avoid controversies regarding the tax treatment of a given transaction, it is advisable that the parties to the transaction obtain a tax ruling concerning VAT/PCC treatment.
A significant limitation in asset deal transactions that should be taken into account in transaction documentation is the statutory right of the pre-emption of property, which consists in providing certain governmental or local authorities with a priority right to purchase certain property that is undeveloped or located in protected zones.
2.4 Disposal process
In the case of an asset deal, the acquisition of property must be concluded before a notary public who prepares the conveyance notarial deed and countersigns it together with both parties to the transaction. The sale of property requires the consent of a shareholders' meeting or the general meeting of shareholders as described in 2.3.
With respect to share deals, the transfer of shares in a limited liability company should be made in writing with notarized signatures. Other types of companies may require a different form of share transfer contract, but they are not often used in property transactions. The most popular form in share deals remains the limited liability company.
Moreover, in share deals the stipulations of the articles of association (statutes) of the company are relevant. If the articles of association contain a provision making the sale of a share, a part thereof or a pledge of a share dependent on the company's consent, a necessary element preceding the conclusion of a share deal is to obtain the company's consent to the sale of its shares.
2.5 Registration of change of ownership
If the property is acquired in the form of an asset deal, and thus a notarial deed is prepared before a notary public, a notice of acquisition of property to the relevant Land and Mortgage Register Department of the District Court will be filed by the notary public. The entry of the ownership right of the property in the LMR has a retroactive effect from the moment of filing the application for entry by the notary public. The court fee for recording the ownership right in the LMR is PLN 200 (approximately EUR 45).
In the case of a share deal, the acquisition of property is not subject to notification. However, as mentioned in 2.2., after concluding a share deal transaction the Register of Entrepreneurs of the National Court Register should be notified of the change of the company's shareholder.
2.6 Risks to be considered
As indicated in 2.3., limitation, which should be taken into account while proceeding with asset deal transactions, is the statutory right of pre-emption of property; it gives certain public entities the priority right to purchase a property. The statutory right of pre-emption is not disclosed in the LMR, so before the transaction, the buyer should verify whether the property is subject to a statutory right of pre-emption. The statutory right of pre-emption applies primarily to certain types of undeveloped property or property located in protected zones, pursuant to Article 109 of the Property Management Act of August 21, 1997.
The right of pre-emption may also be granted to private persons, in which case it is subject to mandatory disclosure in the LMR kept for the property.
If the right of pre-emption in favor of a private person has been disclosed in the LMR, but the sale agreement was concluded in violation of the pre-emption right, the entitled person may bring an action before a common court seeking the declaration of the sale as ineffective towards that person. In the case of a statutory right of pre-emption, a sale agreement concluded in violation of the right of pre-emption is automatically null and void.
In the case of a statutory right of pre-emption of property, the parties first conclude a conditional sale agreement, subject to a pre-emption right being waived within a period of 30 days.
3. REAL ESTATE FINANCING
3.1 Key sources of financing
The most frequently encountered solution is to obtain financing from a financing bank. Before signing a loan agreement, the financing bank evaluates the revenue generated by the project itself, which is both a source of loan repayment and security for the borrowed amount. The most common form of collateral when obtaining bank financing is the establishment of a first priority mortgage in favor of the bank.
3.2 Protection of creditors
As mentioned in 3.1., in the case of property financing, mortgages constitute key security being a charge over a property. A mortgage can be established only on real property, while a pledge can be established over movable assets and certain rights, including shares. Mortgages are established in the form of a notarial deed. A mortgage becomes effective upon its entry into the LMR maintained by the court for the relevant property.
A mortgage is established either in value or up to a certain value. Within a specified value, the mortgage allows for the enforcement of claims from the property with priority over other creditors of the property owner also in the event of the debtor's bankruptcy.
Often financing banks require that the borrower voluntarily accepts submission to future enforcement proceedings which in result would give the financing bank access to an accelerated enforcement process in respect of debts covered by the submission. The submission requires that the borrower executes an instrument pursuant to Article 777 of the Polish Code of Civil Procedure which should be made in the form of a notarial deed and which should include a declaration by the debtor (borrower/guarantor) that it voluntarily submits itself to enforcement in favor of the creditor (e.g., the purchaser or the financing bank) directly on the basis of a notarial deed. As a result, the beneficiary of the submission is authorized, in the event of default on repayment of a loan, to commence an enforcement procedure without the need for lengthy court proceedings.
The creditor’s position can also be secured by a pledge, in particular a pledge over shares. A pledge is created on the basis of an agreement between the debtor (pledgor) and the creditor (pledgee), and in the case of a registered pledge also on the basis of entry into a public register maintained by the court.
4. REAL ESTATE TAXES
4.1 Transfer taxes
Generally, taxation depends on the type of transaction (please see 2.1., 2.2., and 2.3.). 2% of PCC (stamp duty) applies to a purchase of shares in a company, purchase of a business (or its specific part), or purchase of an apartment on the secondary market, whereas other property acquisitions are subject to VAT. Personal Income Tax and Corporate Income Tax apply on the basis of general rules.
4.2 Specific real estate taxes
Polish law and practice identify two types of titles to property: ownership (freehold) and perpetual usufruct right. Both an owner and a holder of perpetual usufruct are obliged to pay real estate taxes. Local governments set the yearly amount of property tax for each property based on maximum rates announced by the Minister of Finance.
A holder of perpetual usufruct in addition to property tax is obliged to pay a perpetual usufruct fee. The fee depends on the value of the property and the purpose for which the property is used and may range from 0.3% to 3% of the value of the property per annum. Valuation of land for the purpose of calculating the annual perpetual usufruct fee may be updated no more frequently than every three years.
There is also a possibility to transform perpetual usufruct right into ownership. For such a transformation, a perpetual user should pay a fee equivalent to twenty annual fees for perpetual usufruct.
Specific to Polish law is a planning fee. If in connection with the adoption of a local zoning plan or amendment thereto, the value of the property has increased and the owner or holder of perpetual usufruct disposes of property within five years after a local zoning plan was adopted, the local municipality is authorized to collect a one-off planning fee that is relative to the increase of the property value in result of a local zoning plan. The percentage applicable to the increase in value and used to calculate the planning fee is stipulated in the local zoning plan. In addition, in the event of division, consolidation and redivision, or construction of technical infrastructure facilities financed (co-financed) by the State Treasury or local government units, and the value of a property increases, the owner or holder of perpetual usufruct must pay a fee. The fee is relative to the increased value of the property and may not exceed 30% of the increase resulting from its division, 50% of the increase resulting from its consolidation, and division or 50% of the increase resulting from the construction of technical infrastructure facilities.
5.1 Legal framework for condominiums
Condominiums are known in Poland as housing associations. The legal framework for the functioning of housing associations in Poland is set by the Act on Ownership of Premises and the Civil Code to the extent that it is not regulated by the Act on Ownership of Premises. The act specifies the manner of establishing separate ownership of residential premises and premises for other purposes, the rights and obligations of the owners of such premises, and the management of the common property.
Housing associations are formed by law at the moment of the separation of the first premises from the building. As a result, separate Land and Mortgage Registers are maintained for each of the premises and for the building. The share in the co-ownership of the property and the possibility of using the common parts of the property derives from the separate ownership of the premises. A housing association is a legal entity with limited legal capacity. A housing association is a kind of company, which is compulsorily joined by the purchaser of the apartment.
5.2 Rights and duties of co-owners
Each premises owner has the right to use common parts of the property in accordance with their purpose. The common parts of the building include accesses and driveways and parking spaces, staircases and lifts, central heating, premises such as the attic, drying rooms, cellar, roof, and walls. Every member of the housing association has the right to comment on the functioning of the common property. The owners of premises may also convene a housing association meeting, all that has to be done is submit an appropriate application provided these owners hold at least 1/10 of shares in the entire property. The members of a housing association also participate in the life of the housing association by voting on resolutions concerning important matters for the housing association.
The main duty of the members of the housing association is to contribute to the costs of the operation, maintenance, and refurbishment of the common property. This amount varies depending on the size of the residential or non-residential premises. The costs include expenses for repairs and maintenance of the building, all fees related to the supply of energy, also to the common parts, lift, insurance of the property, taxes, maintenance of the common parts, remuneration for the management or manager. Other obligations of the owner include adherence to the rules of the building, making the premises available for maintenance, repair, or removal of a fault, which also concerns the common area or other premises.
5.3 Liability of co-owners
Pursuant to the provisions of the Civil Code, which applies when the Act on Ownership of Premises does not regulate a given issue, co-owners of a common property bear the expenses and burdens related to that property in proportion to their share in the co-ownership of that property. Therefore, the responsibility of the co-owners of premises for debts related to the costs of premises is not joint.
The co-owner bears the costs connected with the management of the common property in proportion to their share in the common property calculated as the product of a share in the common property and a share in the common ownership of the common property on this premises. Therefore the co-owners of the premises are not jointly liable for debts resulting from the costs of the management of the common property.
As far as the joint liability of the members of the housing association is concerned, the Act on Ownership of Premises does not contain a provision that would impose on the co-owners in fractional parts of one premise joint and several liability towards the housing association for expenses connected with maintenance of said premises. On the other hand, according to the Civil Code, joint and several liability may arise only by law or legal act.
5.4 Rights and duties of condominium associations
A housing association may acquire rights and incur obligations, sue and be sued, enter into an employment relationship as an employer. A housing association is not a property tax-payer; however, its members are, according to the area and use of the premises, and with regard to the common parts of the property, in proportion to their shares in it.
A housing association acts through its management board. The management board is responsible for managing the affairs of the housing association and representing it vis-a-vis third parties and in relations between the housing association and individual owners of premises. Everyday decisions (such as the collection of receivables, maintenance of the common property, administration, and similar) can be taken by the management board of a housing association itself, whereas activities exceeding everyday affairs (such as entering into loan arrangements, disposal of part of common property to a third party, determining the remuneration of members of the management board or manager of the common property, adopting an annual business plan, determining the level of fees payable by members of the housing association, changing the purpose of part of the common property, or extension or reconstruction of the common property), require the consent of the housing association.
The consent of members of the housing association is expressed in resolutions that require a simple majority of votes of the owners of premises, calculated according to the number of shares unless the agreement or resolution adopted in this manner stipulates that in a given matter each owner has one vote. The housing association may entrust the management of a housing association to a professional company.
6. COMMERCIAL LEASES
6.1 Form and contents of a lease agreement
Lease agreements lasting for a period longer than one year should be concluded in writing otherwise the agreement is considered terminable by notice. If a lease agreement has been concluded not only in a written form but also with an authenticated date (by a notary public or otherwise as regulated in the Civil Code) then in case the owner of a leased property has sold it, the purchasing owner must honor the lease, provided the subject of the lease has already been delivered to the tenant.
Standard commercial agreements specify the parties, leased item, lease period, and rental amount. In commercial leases, rent typically consists of two items: proportionate contribution to the costs of the operation of the entire property and net rent constituting income for the landlord. Other provisions typically include a description of the required collaterals. Leases relating to future objects (premises located in buildings under development) include complex regulations regarding the terms and conditions of the handover of the leased item.
The most recent trends on the leasing market have been caused by the COVID-19 pandemic. Tenants are renegotiating agreements and in case of retail activity demanding turnover-linked rent or a proportional reduction in rent in the event of a governmental lockdown. Tenants are also negotiating the right to freely reduce or to extend leased space.
6.2 Regulation of leases
The limitation periods for exercising parties' rights may not be contractually excluded or changed. The limitation period of one year relates to claims by the landlord against the tenant for compensation for damage due to loss of value or deterioration of the property, as well as the limitation period for claims by the tenant against the landlord for reimbursement of expenditure on the property or for repayment of overpaid rent. Similarly, a period of delay in the payment of rent giving a landlord the right to terminate a lease prematurely must not be shorter than two payment periods (months).
During the COVID-19 pandemic, new privileges were granted to tenants. Firstly, in shopping malls with a sale area over 2,000 square meters., the amount of payment obligations of a tenant towards a lessor is reduced to 20% of dues (of the amount payable prior to March 14, 2020, i.e. before 2021 indexation) for the period during which the governmental lockdown was applicable to such a tenant and 50% of dues (of the amount payable prior to March 14, 2020, i.e. before 2021 indexation) for a period of three months after the governmental lockdown is lifted. Secondly, eviction of tenants from their apartments is suspended for the duration of the pandemic.
6.3 Registration of leases
There is no general registry containing an index of commercial leases.
6.4 Termination of leases and renewals
Fixed-term lease agreements can be terminated on grounds specified in the lease agreement and in the Civil Code. Statutory grounds to terminate a lease for cause apply in case: (i) the leased item has defects that make it impossible to use the item in the way it has been envisaged for use in the lease agreement and in spite of being informed, the landlord does not remove the defects or the defects cannot be removed, and (ii) the tenant uses the leased item in a manner inconsistent with the lease agreement or with the designation of the leased item and despite a warning does not cease to use it in such a manner, or if they neglect it to the extent that it is exposed to loss or damage, and (iii) the tenant does not pay for two full payment periods.
The lease agreement can be terminated without cause if the lease was concluded for an undefined period. The statutory time limits for the termination of a lease by notice are as follows: if the rent is payable in periods longer than one month, the lease may be terminated by giving notice at the latest three months in advance at the end of a calendar quarter; if the rent is payable monthly, one month in advance at the end of a calendar month.
When it comes to automatic lease renewals, under Polish law, a lease agreement concluded for a period longer than ten years (or if between entrepreneurs for a period longer than thirty years) is deemed, after the lapse of that period, to have been concluded for an indefinite period, provided the lease object has not been vacated by a tenant and the tenant continues to pay rent. Under Polish law, there is also an “automatic renewal mechanism” which means that if, after the lapse of the period specified in the lease agreement or in the notice, the tenant continues to use the leased item with the consent of the landlord, then the lease is deemed to have been extended for an indefinite period. Other forms of renewals require the consent of the landlord and the tenant.
6.5 Rent regulations and rent reviews
The date and method of rent payment are typically specified in the lease agreement. If the date of payment of the rent is not specified in the lease agreement, the rent is due in advance, namely: if the lease is to last no longer than one month, for the whole period of the lease, and if the lease is to last longer than one month then monthly, not later than on the tenth day of each month. Although legally (pursuant to the Civil Code) a landlord is authorized to unilaterally revise the rent in case of indexation of rent by a pre-determined index, commonly (in the tenant-dominated market) such a possibility is contracted out pursuant to the request of tenants and the conditions and dimensions of rent review in fixed-term leases and regulated contractually by the parties.
6.6 Services to be provided together with the lease
The landlord is obliged to ensure that the leased item is suitable for its agreed use. This regulation determines the scope of services to be provided by the landlord. In case of failing to provide for its agreed use, the tenant is entitled to withdraw from the lease agreement. During the governmental lockdown due to the COVID-19 pandemic and, amongst others, the obligation to close shops located in shopping centers over 2,000 square meters., tenants withdrew from lease agreements, claiming that the landlord did not ensure the agreed use of the leased premises, as the premises could not be opened.
6.7 Fit-out works and their regulation
Tenants cannot undertake any changes to a leased item against the provisions specified in the lease agreement or against the designation of the leased item. Parties may specify in the lease agreement the scope of works undertaken by the tenant. Upon termination of a lease, the tenant is in principle obliged to restore the leased premises to their original condition, i.e. to take back/remove investments, but the lease agreement may modify this rule.
When it comes to the tax implications of alterations undertaken by a tenant, during a period of ten years the tenant may make tax depreciations on costs of alterations made.
6.8 Transfer of leases and leased assets
When a leased item is sold, already-concluded lease agreements are transferred, by virtue of law, to the new purchaser. The new landlord cannot terminate a lease agreement, concluded in written form with an authenticated date and the leased item was already released to the tenant.
Otherwise, the leases are not assignable unless pursuant to the consent of the parties. In commercial leases, landlords require the consent of a tenant in advance for the future assignment of leases or rights to collect rent on banks financing landlords.