It may be difficult to understand certain terms in the scope of civil law. However, such knowledge is necessary to be aware what traps should be avoided when signing a tenancy agreement for a flat.
The landlord (or lessor) is an entity (e.g. a person or company) who offers a flat for lease. The landlord makes the flat available for use, against remuneration, to another entity (a person or company), i.e. the tenant (or lessee).
In civil law people are usually referred to as natural persons. Legal persons, in turn, are the State Treasury and other entities with “legal personality” (allowing them, among other things, to conclude agreements) – these are, in practice, enterprises (companies), cooperatives, communes/municipalities, foundations, associations, universities etc.
Types of agreements
When looking for a flat to rent, you may encounter several basic types of tenancy agreements. They differ from one another in many aspects. Some of them must be prepared and signed in a specific form. Some types of agreements protect the tenant more, while others secure the landlord’s interest to a greater extent. The following types of agreements existing in Poland can be distinguished:
- Tenancy agreement for a specified period – this is in practice the most frequent type of agreement. What makes it special is that it is valid only for the period of time indicated in its provisions (e.g. 1 year, often with the possibility of extension by means of an amendment). Once the term of the agreement has expired, tenancy no longer exists unless the agreement is extended.
- Tenancy agreement for an unspecified period – this type of agreement has no time limits. It remains valid until terminated by either party. The possibility of terminating it does not depend on including a relevant clause in the agreement. However, notice periods do apply, which depend on the length of the settlement period, i.e. the frequency of rent payments (see → Term of the agreement and notice period).
The agreements indicated above do not have to be concluded in a special form. Also, when concluding either agreement as a tenant, you enjoy the enhanced legal protection envisaged in the Act on the protection of tenants’ rights, the communal housing stock and the Civil Code amendment. This act regulates many aspects in a manner favourable to the tenant in the event of concluding a normal tenancy agreement for
a specified or unspecified period of time, e.g. by limiting the allowed amount of rent and the frequency with which it is increased, granting protection from eviction and regulating the possibility of the agreement being terminated by the landlord.
However, there are also other types of tenancy agreements that exist under Polish law. These are:
- Occasional tenancy agreement – it can be concluded only between natural persons (i.e. you cannot conclude such an agreement with a company), only with the owner (sublease is prohibited), only for a specified period (up to 10 years) and only for residential purposes (it is prohibited to conduct any economic activity in the rented space);
- Institutional tenancy agreement – it can also be concluded with a legal person or organizational unit without legal personality (e.g. a company) on the condition that such an entity conducts economic activity related to the lease of premises. Such an agreement may be concluded for any specified period of time.
Occasional and institutional tenancy agreements are concluded in a specific form. A declaration must be drawn up in the form of a notarial deed regarding voluntary submission to eviction and indicating premises to which the tenant may be evicted. By signing such an agreement, you give up a number of provisions that protect you, e.g. by agreeing to eviction in the event of expiry or effective termination of the agreement. Additionally, such agreements may facilitate termination of tenancy by the landlord. They also enable larger and more frequent rent increases. Nevertheless, everything depends on the written content of the agreement. Changes to the agreement, the amount and frequency of rent increases and the possibility of terminating the agreement must be precisely described in its provisions.
Parties to the agreement
Make sure that you know who you are concluding the tenancy agreement with. Also note whether the lessor is also the owner of the flat. If there are more owners, but you are signing the agreement with only one, make sure that the lessor has obtained the consent of the other co-owners to lease the flat (e.g. he or she has a power of attorney from the other co-owners). Sometimes it may happen that the person from whom you want to rent a flat is actually a lessee. Make sure that he or she has the right to sublease the flat (it will usually be written in the lease agreement between “your” lessor and the flat owner).
An agreement with a natural person should contain at least the full name, registered address/permanent residence and the indication of an identity document (e.g. personal card, passport) including the series and number of the document for each party to the agreement (landlord and tenant). You have the right to demand that the document be presented by the landlord and he or she has the right to demand the same from you.
The agreement may also contain e.g. the PESEL numbers (personal numbers) or contact details of the landlord and tenant. If the person with whom you conclude the agreement conducts economic activity, it is necessary to include their business register entry number.
If you enter into an agreement with a legal person (e.g. a company managing or owning the flat), make sure that the agreement contains details enabling clear identification of the lessor, above all the company name, address, information about entry into the relevant registers (e.g. KRS number – National Court Register number) and the details of the person signing the agreement. Furthermore, make sure that the person signing the agreement on behalf of the company actually has the right to conclude it (on the basis of
a relevant power of attorney).
When the agreement is signed by an attorney-in-fact, check whether the agreement contains details enabling the identification of not only the lessor, but also of that attorney (including the full name, series and number of the identity document and the indication of the legal basis for concluding the agreement on the lessor’s behalf – the usual wording used is “based on power of attorney no.... of..., which was presented upon concluding the agreement...”). Also, when the lessor is represented e.g. by a real estate agency, make sure that its representative has a relevant power of attorney.
Before the agreement is signed, it is worth asking that the land and mortgage register for the flat should be presented as it contains information about the owner.
Subject of the agreement
Make sure that the agreement clearly states its subject. Pay particular attention to whether the agreement covers the lease of the entire flat or only a part of it (e.g. a room). In the event of leasing only a part of the flat, check whether the agreement grants you the right to use the common parts of the property (e.g. the corridor, living room, kitchen and bathroom) and whether it regulates the rules of using them (whether your right to use the common parts has not been restricted in any way, e.g. to specific hours or methods of use etc.). Verify whether you will be allowed to keep a pet, receive guests, smoke, organize parties, grill on the balcony etc.
Pay attention to what household appliances and electronics (e.g. a washing machine, refrigerator, TV, vacuum cleaner) and what furniture the flat is equipped with, and whether you will be able to use them and under what conditions (see → Repair and renovation). If you move in with your own equipment, determine how to connect the household appliances safely. However, it is always worth writing down
a handover report containing a list of the flat equipment (photos can be attached) as an appendix to the tenancy agreement. This will protect you from a situation where, after signing the agreement and before you move into the rented flat, a part of the equipment is removed. In addition, such a document will be the basis for settlement after the agreement is terminated.
Form and content of the agreement
Be absolutely sure that the agreement is made in writing, even if you know the landlord very well. An oral agreement is also valid under law, but in the event of a misunderstanding or conflict, it will be very difficult for you to prove what your mutual arrangements were.
As regards the content of the document, apart from the parties’ identities and the subject of the agreement, it should specify as precisely as possible the amount of rent and other payments, the term of the agreement, conditions for termination or amendment and the mutual rights and obligations of both parties.
An agreement that is too short and laconic may lead to conflicts and misunderstandings in cases of dispute. But it does not mean that the longer and more complicated the agreement, the better for you.
Sometimes agreements contain provisions that are extremely unfavourable to the tenant and contrary to the principles of social coexistence or even against the applicable law. The catalogue of such provisions is extremely broad and they cannot be listed in an exhaustive manner. More information on this subject can be found on the website of the Office of Competition and Consumer Protection (UOKiK).
Examples of contractual clauses to be avoided so as not to expose yourself to a conflict and potential litigation include such where the landlord:
- excludes the right to bring a case to court;
- reserves the exclusive right to a binding interpretation of the contractual provisions;
- introduces flagrant disproportion as regards the rights and obligations of the parties to the agreement (e.g. by reserving the exclusive right to terminate the agreement);
- makes the tenant’s right to terminate the agreement conditional on meeting specific conditions (e.g. by imposing on the tenant the obligation to find another tenant instead, envisaging high contractual penalties for terminating the agreement etc.);
- specifies a long list of situations in which the tenant is obliged to pay high contractual penalties.
There are also cases where agreements contain certain provisions aiming to introduce order – e.g. provisions regulating the relations between flatmates or rules of conduct concerning the common parts of the flat, building or the closest neighbourhood. Such rules often result from the residential area’s or tenants’ association’s rules and regulations. It is particularly visible in the case of (private) halls of residence which almost always have their own rules and regulations, usually constituting an appendix to the agreement. Special care is needed in the case of such provisions. Of course, it does not mean that you should object to all provisions of this type. However, it may happen that the landlord will try to exploit such clauses to interfere with your private life in a way that goes far beyond the generally accepted interpersonal relations.
Pay attention to such provisions that already at first glance interfere too deeply with your private life. Consider choosing not to sign the agreement when the landlord:
- interferes with your social or intimate life (e.g. by prohibiting you from receiving guests or restricting it, prohibiting you from inviting your partner to the flat or prohibiting other people from spending the night at the rented flat occasionally etc.);
- tries to regulate your private life, way of spending your time, lifestyle, work rhythm (e.g. by specifying the permissible hours of return to the flat, vacuum cleaning, doing the washing, using the TV and internet, using the bathroom, eating meals, the allowed clothing, type of music to be listened to etc.);
- tries to influence your world-view or system of values.
In addition, avoid any provisions that are discriminatory on grounds of gender, origin, nationality, skin colour, religion or the lack of religious beliefs, sexual orientation etc.
The vast majority of such provisions constitute abusive clauses that, even if contained in the agreement, cannot be deemed valid due to their being in flagrant contravention of law or the principles of social coexistence. When they appear in the agreement, there is a risk that the cooperation with the landlord will go wrong and the conclusion of such an agreement may expose you to unnecessary conflicts and prolonged litigation.
Term of the agreement and notice of period
Pay attention to the term of the agreement. This will have direct consequences as regards the potential notice period.
Agreement for an unspecified period
When an agreement is concluded for an unspecified period, you have the right to terminate it within the time limits resulting from civil law (described below), even if the notice period has not been specified in the agreement. In such a case, the frequency of rent payments is crucial for the length of the notice periods.
- If rent is payable less often than once a month (e.g. once every two months), then tenancy can be terminated at the latest three months in advance at the end of a calendar quarter.
- If rent is payable once a month, then tenancy is terminated a month in advance at the end of the calendar month.
- If rent is payable more often than once a month (e.g. once a week), then tenancy can be terminated three days in advance.
- If rent is payable daily, then the agreement can be terminated a day in advance.
The parties usually decide to specify the notice period in the agreement. However, such a period cannot be shorter than the statutory periods described above. But it can be longer, and therefore always pay attention to the contractual provisions in this scope. This will help you avoid situations in which you will be obliged to rent the flat for a period longer than necessary.
Agreement for a specified period
Tenancy agreements concluded for a specified period are in effect for their entire term unless the agreement enables earlier termination. As a result, if you conclude a 1-year tenancy agreement for a flat and you fail to ensure that a provision enabling earlier termination is included, then you will be obliged to rent the flat for the whole year. This is why it should be precisely determined in the agreement in what situations and subject to what notice periods the agreement can be terminated.
At the same time, make sure that the agreement does not contain any previsions that make the possibility of terminating the agreement conditional on meeting specific conditions, e.g. finding another tenant instead or such that stipulate the obligation to pay excessive contractual penalties if the agreement is terminated before the end of its term.
In specific cases it is possible to terminate the agreement with immediate effect. Such cases include above all situations where the flat has a major defect preventing its use and which was unknown to the tenant before. If the defect poses a risk to the life or health of tenants, the agreement can be unconditionally terminated with immediate effect regardless of the notice period.
Remember that in specific cases, e.g. your use of the flat in a way that is contrary to its intended purpose, subleasing the entire flat or its part to other people without the landlord’s consent or being in arrears with rent for 3 consecutive settlement periods, the landlord has the right to terminate the tenancy agreement before it actually expires.
Rent and bills
It is important for the agreement to specify clearly the elements of the amount paid to the landlord. It may turn out that the lease price – even though attractive at first glance – is only the amount of rent, i.e. the “remuneration” paid to the landlord, while the actual cost of renting the flat will be much higher (covering administrative rent, bills for water, electricity, gas, heating, TV, internet etc.). Read the agreement carefully before signing it and check whether it includes the conditions arranged when viewing the flat. Furthermore, make sure that the agreement contains a provision that the payments will be made on the basis of bills presented by the landlord and not on the basis of his declarations.
It is a frequent practice that the landlord collects only some payments along with rent, leaving e.g. the connection of internet and TV up to the tenant who must conclude the relevant agreements independently (e.g. with the internet provider). To be on the safe side, make sure that the agreement contains a provision on the landlord’s consent to the connection of the remaining utilities.
Make sure that the agreement clearly specifies the period and method of paying rent and other bills. Check whether rent is to be paid in cash or by transfer to a bank account. In the event of cash payments, make sure that you obtain a receipt each time. In the event of transfer payments, make sure that the provided account number is correct and check whether the date of payment is considered as the date of ordering the transfer or crediting it to the landlord’s account.
Make sure that the amount of potential rent increases is clearly specified. The landlord cannot arbitrarily modify the amount of rent or the notice period. Therefore, prohibited are such provisions that, for instance, give the owner the right to increase the rent at any time and by any amount. In most cases, it is possible under applicable law to increase the rent not more frequently than once every 6 months. The increase should not exceed 10% of the existing rent, excluding the bills that are beyond the landlord's control. The notice period for the rent amount also cannot be shorter than 3 months, effective as of the end of a calendar month. Provisions that allow increasing the rent more than once every 6 months, allow it to be increased by any amount or reduce the notice period for the rent amount below 3 months constitute abusive clauses which are ineffective by operation of law.
A deposit is a certain contractual amount that must be paid by the tenant, constituting security for the landlord in respect of potential damage, destruction etc. In principle, it is equal to one month’s rent or its multiple. The deposit amount cannot exceed the equivalent of 12 months’ rent.
Make sure that the deposit amount has been clearly specified in the agreement, along with the date and method of paying it as well as the date, method and conditions for its return. If the deposit is paid in cash, make sure to ask for a receipt including the date and landlord’s signature. The agreement should specify the period in which, after termination of the agreement, the deposit should be returned to you. It is usually
a period of up to one month from moving out of the flat.
The landlord may refuse to return the entire deposit or its part if the flat or equipment are damaged or neglected. For this reason, it is worth caring for the rented flat. Nevertheless, normal wear and tear of the flat and equipment cannot lead to forfeiture of the deposit. To secure yourself against losing the deposit, it is worth describing the condition of the flat and equipment in detail in a handover report, preferably including photo documentation. It is also worth specifying in the agreement what modifications may be made to the flat and equipment (e.g. whether you can drive a nail into the wall to hang a mirror or painting or install a bookshelf etc.).
It is a popular practice to credit the deposit towards the last rent payment. Such an option should also be described in the agreement. In the event that this solution is used, make sure to obtain a relevant declaration from the landlord confirming the fact of crediting the deposit towards the rent.
The lessor does not necessarily need to be the flat owner. It is also possible to rent a flat or its part from
a person who is a tenant himself or herself. In such a case, it is of key importance whether the agreement signed by the tenant with the flat owner enables the sublease of the entire flat or its part, e.g. a room. If you rent a flat or room from a person who is a tenant, make sure that his or her agreement with the owner enables sublease and that such a consent has been obtained from the owner, if required.
Similarly, if you rent a flat from the owner and wish, for example, to sublease a room to another person, make sure that your agreement with the owner allows you to sublease the flat or its part and that such
a consent has been obtained from the owner, if required.
A handover report is a document usually drawn up as an appendix to the tenancy agreement. It should describe in as much detail as possible the condition of the flat at the moment of concluding the agreement (including, but not limited to the condition of systems, current meter readings, flat equipment, overall technical condition etc.). It is advisable to include photo documentation being an objective indicator of the condition in which the flat is handed over for use. The more detailed the report, the better you secure yourself against undesirable situations, unauthorized claims made by the landlord and the potential loss of the deposit. The report, similarly to the agreement, should be signed by both parties and include the date of its signing.
Also make sure that an analogous report is signed when you move out. It may not only secure you against the landlord’s claims, but also provide the basis for recovering a part of your expenses if you made any major improvements to the flat, to which the landlord consented.
Repair and renovation
Under the applicable law, most repairs and costs connected with the daily use of the flat are incurred by the tenant, e.g. small repairs of the floor, doors and windows, painting the walls, floors and the internal side of the front door, but also small repairs of systems and equipment used for lighting, heating and water supply. These rules may be modified, and therefore it is worth regulating the issues of repair and renovation costs in the agreement. It is worth indicating precisely which costs will be incurred by the landlord and which will be covered by you. The more detailed the agreement as regards the responsibilities of each party, the better you secure yourself against unexpected costs. Above all, make sure that the potentially most expensive repairs, including for example the replacement or renovation of particular systems, are within the landlord’s scope.
When living in a rented flat also pay attention to the issue of potential improvements and modifications introduced in the apartment at your own expense and increasing the value of the flat. If the landlord has consented to such improvements, you can ask for reimbursement of the entire cost incurred or its part upon moving out. It is advisable to include a provision regulating this issue in the agreement. It is also worth obtaining a written confirmation that the landlord consents to the introduction of a given improvement or modification. Otherwise, he or she may request that the original condition should be restored at your expense.
The landlord's right to visit the flat
As a rule, the landlord cannot visit the rented flat without a reason. For the landlord to pay unannounced visits and enter the flat without your consent or prior arrangements, both when you are staying in the flat or away, is inadmissible and may result in the landlord’s liability.
However, there are several exceptions to this rule. The landlord has the right to visit the flat having previously arranged the date with the tenant in order to inspect the condition of the flat and its technical equipment, to determine the scope of necessary work and to carry out such work.
In absolutely exceptional cases, e.g. when a major failure occurs (e.g. a burst pipe), the landlord has the right to demand that you let him/her in or even to enter the flat when you are away in the presence of
a police officer and, if need be, with the participation of the fire service. In such a case, a relevant incident report must be drawn up if there are no adult household members present.
The generally applicable provisions protect you in a sufficient way against unannounced and unwanted visits by the landlord. However, make sure that the agreement does not contain such provisions that unreasonably extend the landlord’s right to visit the rented flat.
Amendments to the agreement
Ideally, any change in the terms and conditions of the agreement should be arranged between you and the landlord. However, the landlord often tries to impose changes without consulting the tenant. It is worth knowing that any changes in the terms and conditions of the agreement must take place in accordance with the legal and contractual provisions. The landlord cannot freely modify the content of the agreement during its term on the basis of a unilateral declaration. He or she cannot introduce either changes with immediate effect or such that fundamentally interfere with the content, form or nature of the agreement without your consent, or changes that are contrary to the applicable law.
Nevertheless, the landlord has the right to terminate or modify certain contractual provisions, such as the amount of rent (see → Rent and bills). Such changes must take place in the form of termination of the existing terms and conditions with a sufficient notice period. To avoid problems, make sure already at the time of signing the agreement that it does not restrict in any way your right to terminate it if you do not accept the changes forced by the landlord.
Especially in the case of an agreement concluded for a specified period, it is worth making sure that it contains a provision allowing you to terminate the agreement when the terms and conditions are changed by the landlord, within a period that will let you avoid the consequences of such changes (e.g. in the event of a rent increase, within a period that will enable you to avoid paying higher rent).
Any change in the terms and conditions of the agreement should be in the form of an amendment precisely specifying the scope of changes as well as the date and manner of their entry into effect. Such an amendment must include the date and handwritten signatures of both parties. The amendment, similarly to the agreement itself, should be made in at least two counterparts (identical copies), one for each party.
It may happen that an agreement specifies contractual penalties, e.g. for breaching the individual provisions, early termination or refusal to let the landlord into the flat to inspect its condition, if the visit has been arranged beforehand.
Pay attention to the situations in which such penalties may be imposed and to their amounts. A contractual penalty cannot be charged in the event of rent arrears. In such a situation, the law envisages the charging of interest and specifies its maximum amount.
For your own safety, avoid provisions envisaging contractual penalties in excessive amounts (e.g. more than a month’s rent), imposing contractual penalties in the event of early termination of the agreement and imposing contractual penalties on the tenant only.
Avoid both long lists of situations in which contractual penalties are envisaged and general, imprecise provisions, e.g. in the form of the following clause: “for each and every breach of the contractual provisions, the tenant shall pay a contractual penalty in the amount specified by the landlord”.
Number of counterparts (agreement copies)
A tenancy agreement should be made in at least two counterparts, one for each party. Each copy should bear the date of signing and handwritten signatures of both parties. The copies should be identical. It is also a good idea to initial each page of the agreement (i.e. include an abbreviated signature). Each correction should be introduced in the same way and initialled by both parties.
The above rules also apply to amendments and appendices. Any amendment and appendix, including the handover report, should be made in at least two counterparts, each of them including the date of signing and the handwritten signatures of both parties.
Language of the agreement
You must understand the text of the agreement. The agreement does not have to be written in Polish, but it is recommended as it will facilitate using such an agreement before Polish authorities. If you do not speak Polish to a degree enabling you to understand the agreement precisely, you can ask the landlord to prepare a bilingual text, i.e. in Polish and in the language that you know well. In such a case, the agreement should indicate which language version has priority in the event of differences of interpretation. Translating the agreement into most European languages should not be a problem due to easy access to translators. When the text of the agreement is prepared in a bilingual version from the beginning, then it will be possible for you not only to understand its provisions, but also to use the agreement before authorities and courts, e.g. to obtain a short-term residence permit, registered residence or the PESEL number.
If you have doubts whether the Polish text really means the same as the text in the language you understand, ask a translator or another trusted person speaking both languages of the agreement for help.
If the agreement is made in a language other than Polish, then in the event of proceedings before Polish public administration authorities it will be necessary to obtain an expensive sworn translation of the document. The translation costs are usually incurred by the party that needs the translation or wants to rely on it.
The above rules also refer to all amendments and appendices.