The discussed issues concern two legal provisions included in the Act on the Protection of the Rights of the Purchaser of a Residential Premises or Single-Family House and the Developer’s Guarantee Fund (hereinafter referred to as the developer’s law).
Art. 30 para. 3: The transfer of receivables arising from a reservation agreement to a third party is not allowed. Such a transfer is void.
Art. 30 para. 4: In the event that the party making the reservation transfers the receivables arising from the reservation agreement to a person classified in the I or II tax group, as referred to in Art. 14 para. 3 points 1 or 2 of the Act of 28 July 1983 on inheritance and gift tax (Journal of Laws of 2021, item 1043, as amended), the provision of para. 3 does not apply.
The above provisions were introduced into the developer’s law by the Act on State Aid for Housing Savings and have been in force since July 16, 2023.
According to the cited provisions, individuals wishing to purchase real estate from the primary market usually first sign a reservation agreement, often making a deposit or down payment.
Entities operating in the market often enter into dozens or more reservation agreements, subsequently transferring the rights and obligations to actual buyers, while demanding a fee (often substantial) significantly exceeding the amount paid under the reservation agreement.
Does the amendment mean a ban on “trading” in assignments of developer agreements?
It will only be possible to sell one assignment once every three years.
Unless the buyer of the rights and obligations from the reservation agreement is a person from the I and II tax group, i.e., immediate family.
Receivables arising from the reservation agreement can only be sold in the form of a notarial deed.
What about the so-called “flippers”?
The ban does not apply to individuals conducting business activities, only to individuals. If buyers are entrepreneurs, they do not have to conclude a developer agreement but a preliminary agreement without the form of a notarial deed.
Therefore, a flipper only needs to have a business to be able to freely make assignments of reservation agreements. Just start a business.
Furthermore, the ban on assignments applies to investments covered by the developer’s law in force since July 1, 2022.
What is the effect of concluding an assignment of a reservation agreement in violation of the ban?
A potential assignee who has paid compensation will be able to demand its return under the unjust enrichment regulations.
However, it must be remembered that the developer is not obliged to enter into an agreement with the party making the reservation. If the developer sells the residential premises to a buyer other than the party making the reservation during the reservation agreement, the developer is then liable for the improper performance of the reservation agreement, which may result in, for example, a refund of the reservation fee.