On 1 July 2022 came into force the so-called new development bill, which repeals the existing Act dated 16 September 2011 on the protection of the rights of the purchaser of a dwelling or a single-family house. one the key changes compared to the existing rules are the introduction of regulations on the booking agreement.
Act dated 20 May 2021 on the protection of the rights of the buyer of a residential or single-family house and the Developer Guarantee Fund, i.e.
the so-called new development bill, enters into force on the day 1 July 2022 one from key changes compared to the repealed by the new development bill Act dated 16 September 2011 on the protection of the rights of the purchaser of a dwelling or a single-family house (Development Act), is the regulation of the rules and procedures for the conclusion and content of the reservation agreement, which, despite the wide functioning in practice of the real estate trading on the developer market, was not provided for by the existing provisions on the protection of the rights of the buyer of a residential or single-family house.
In the explanatory memorandum to the draft law (print no.
985) In particular, it was pointed out that the lack of regulation of booking contracts may constitute a potential source of risk for the interests of the buyer, as there is a risk of loss of the money paid by the buyer for booking fees, as well as the developer being not subject to pre-contract obligations in the form of mandatory delivery of the information prospectus to the buyer.
The provisions concerning the booking agreement have been concluded under Article 29-34 a new development bill.
The provisions concerning the booking agreement have been concluded under Article 29-34 new development bill
In the light of the new development bill, the booking agreement is a contract between a developer or an entrepreneur other than a developer (referred to above).
Under Article 4 a new development bill and the person interested in the offer of sale (reserver) whose subject is the obligation to temporarily exclude from the offer of sale of a residential unit or a single-family house chosen by the reservationr.
It can be assumed that the booking agreement will be preceded primarily by the conclusion of a development agreement, but it will be able to precede almost any contract between the buyer and the developer or an entrepreneur other than the developer provided for in the new development act, with it being optional.
The booking agreement will have to be concluded in writing under the rigor of invalidity and should specify in particular elements such as: the parties, the place and the date of conclusion of the contract, the price of the dwelling or the single-family house chosen by the booking officer from the offer of sale, the amount of the booking fee, if such fee has been provided for by the parties, the period for which the dwelling or the single-family house chosen by the reservationr will be excluded from the offer of sale, the determination of the location of the dwelling in the building, the determination of the useful space of the dwelling or the single-family house, the area and layout of the premises.
The booking agreement seems to be particularly important for those interested in the offer of a sale, who plan to finance the purchase of a dwelling or a single family house through credit. Namely, the booking agreement will be concluded for a limited period of time, which should take into account the period necessary to obtain a credit decision or a loan commitment in the event of a loan application.
The parties to the reservation agreement will also be able to determine that the obligation resulting from this agreement is to be linked to the obligation to pay the booking fee to be counted against the purchase price of the rights arising from the contract between the buyer and the developer.
If this agreement is concluded, the developer shall forward it no later than the deadline 7 days from the date of conclusion of the contract, the booking fee for the residential trust account conducted for the development project or investment task.
The new development bill, which should be assessed as a valid solution, also sets the maximum booking fee. This fee shall not exceed 1% the price of the dwelling or single-family accommodation specified in the information prospectus.
Moreover, the fee is to be refunded immediately if the booking holder has not obtained a positive credit decision or a credit pledge, due to a negative creditworthiness assessment, where the developer or entrepreneur other than the developer does not comply with the obligation under the booking agreement (in this case the booking fee is to be reimbursed in double amount) and where the developer has changed the information prospectus or its attachments without informing the bookingee.
The booking fee will be refunded twice as much as if the developer or an entrepreneur other than the developer does not remove the defects submitted to the collection protocol and the buyer will not sign the property transfer agreement, which will only apply if the booking agreement precedes a certain type of contract with the developer or entrepreneur other than the developer.
As indicated above in the context of the circumstances justifying the reimbursement of the booking fee, during the booking contract, the developer will be required to inform the reserve holder of the changes made to the information prospectus or its annexes in such a way as to identify them, indicating what the change is. However, this commitment does not concern amendments to the information prospectus relating to disclosure of claims arising from a development contract or other specific contracts between the buyer and the developer, and claims for the establishment of a mortgage by purchasers to banks.
Author: Oliwia Wójcik
Lawyer. Graduated from the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin and Postgraduate Studies of the Legal and Economic Fundamentals of the Investment Process organized by the Warsaw School of Economics. Its professional interests are economic law, with particular emphasis on the law of commitments. He also has practical experience in conducting litigation.