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 from the key changes compared to the existing regulations is the creation of a Developer Guarantee Fund. However, the provisions relating to it to some extent have already entered into force much earlier.
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the so-called new development bill, enters into force on the day 1 July 2022 one with key changes compared to – repealed by the new development bill - Act dated 16 September 2011 on the protection of the rights of the purchaser of a residential or single-family house (Development Act), is the creation of a Developer Guarantee Fund (Fund).
In the explanatory memorandum to the draft law (print no.
985) It was pointed out first and foremost that the project promoter’s intention is to provide a complementary system for the protection of the buyer’s funds, which means that it is necessary to introduce a set of instruments that are interconnected and complementary to each other and that the buyer’s funds are to be protected at the same level regardless of the type of residential trust account chosen by the developer.
The provisions concerning the Fund have been concluded under Article 46-56 a new development bill. However, it should be borne in mind that some of the provisions on the Fund, i.e. Article 46, Article 47 and Article 48(6) the new development bill, had a different date of entry into force, i.e. 30 days from the date of publication.
The Fund is a separate account in the Insurance Guarantee Fund (UFG), which provides the Fund's services. The Fund's funds may come from various sources, such as: contributions owed by developers, interest on money collected on a separate UFG bank account and income from the investment of the Fund's funds, the buyer's claim to the developer or the bank to reimburse the sums paid to the buyer, receipts from the insolvency of the developer in the event of the bankruptcy, funds received by UFG from loans and loans to the Fund, other receipts.
The Fund shall be used to reimburse the purchasers' payments made to an open residential trust account in connection with the execution of a development contract or other contract between the buyer and the developer (obligatory in nature), in particular in the following cases:
- to order the judge-commissioner to dismiss the Syndik's request for authorisation to continue the development project,
- to give the judge-commissioner a decision to grant permission to withdraw from further development,
- the decision of the judge-commissioner to grant consent to the cessation of the development project,
- withdrawal one from contracts by the syndicate (power arising from Article 98 Act dated 28 February 2003 – Bankruptcy law),
- withdrawal one from contracts by the administrator (power arising from Article 298 Act dated 15 May 2015 – Restructuring law),
- withdrawal one from contracts by the purchaser and not receiving reimbursement within the time limit,
- withdrawal one from contracts by the purchaser where the syndication has requested performance of the contract,
- failure of the judge-commissioner to rule on the continuation of the development project within the time limit 3 months from the date of the bankruptcy.
The repayment of payments by the Fund will result in the right of the transfer to the UFG of the buyer's claim to the developer or the bank for reimbursement of the sums paid to the buyer, together with statutory interest for delay.
The calculation of the amount of the contribution to the Fund is to be based on the value of the payment made by the purchaser to the residential trust account in connection with the execution of the development contract or other contract between the buyer and the developer (obligatory) and, in the case of an earlier conclusion of the booking contract and the buyer's payment of the booking fee which is then transferred by the developer to the residential trust account, the value of the payment made by the developer.
The rate is to be the product of the value of the payment made by the buyer or developer and the relevant percentage, respectively, with the maximum percentage not exceeding (1) 1% - in the case of an open residential trust account or (2) 0.1% - in the case of a closed residential trust account.
It can be concluded from the above that the intention of such a differentiation of contributions may be to try to promote the use of closed residential trust accounts by developers.
The calculation of the contribution will be made by a developer who will deposit it with a bank holding a residential trust account within the time limit 7 days from the date of payment and no later than the payment of funds to the developer. It will then be paid to the Fund.
The contribution transferred to the Fund will not be recoverable.
The repayment of payments by the Fund will result in the right of the transfer to the UFG of the buyer's claim to the developer or the bank for reimbursement of the sums paid to the buyer, together with statutory interest for delay.
In connection with the creation of the Fund, UFG will also conduct the Register of the Developer Guarantee Fund (Evidence) in the IT system. The Registry will collect certain data and information on developers holding residential trust accounts, purchasers, banks holding residential trust accounts, development projects and investment tasks, (obligatory) agreements between the buyer and the developer, residential trust accounts, contributions owed by the developers or dates of the bank's contribution to the Fund.
The UFG will pay the funds from the Fund upon receipt from a bank holding a residential trust account (and if the guarantee condition is met to the bank holding a residential trust account — the Bank Guarantee Fund) of certain information, as well as after the buyer has submitted an application and a statement of the amount of funds reimbursed by the developer. This application should include the name, name, PESEL, postal address and check-in address of the buyer, the number of the residential trust account and the name of the bank holding the account to which the buyer made the payments, the account number and the name of the account holder to which the funds are to be paid.