Poland

Legal and tax aspects of
investing in real estate
it, if the lease agreement does not forbid
it. However, when the subject of lease
constitutes premises or retail areas, hand
over the property or part of it to a third
party for free of charge use or sublet it
requires the lessor’s consent. If the leased
property is handed over to a third party,
both the lessee and the third party are
liable towards the lessor for using the
property in accordance with the provisions
of the lease agreement. The relationship
arising from a contract for free of charge
use or subletting concluded by the lessee
is terminated, at the latest, when the main
lease agreement is terminated. In practice,
the lease agreements forbid subletting the
property to a third party or require the prior
written consent of the lessor.
The leased property can be disposed of
during the lease period. In this case the
acquirer becomes a party to the lease
agreement as a lessor in place of the
seller. The approval of the lessee is not
required. The new owner may terminate
the lease agreement retaining statutory
notice periods. However, the new owner
does not have a right to terminate the lease
agreement if it is concluded for a definite
period of time, in written form with an
authenticated date (data pewna) and the
subject of lease has been delivered to the
lessee. If, as a result of the lease agreement
being terminated by the acquirer of the
leased property, the lessee is forced to
return the leased property earlier than he
would have been obliged to under the lease
agreement, he may demand compensation
from the seller.
Security
Lessors often use the special clauses
in the lease agreements to secure their
potential claims to lessees such as money
deposit, promissory note, surety and bank
guarantee.
• Money deposit – it is a sum of money
submitted by the lessee in order to
secure the lessor’s potential claims
in case of non-fulfillment of the lease
agreement or damages caused by the
lessee. As far as the lease of commercial
premises is concerned, there is almost
unlimited discretion in determining
the content of the clause. In the case
of lease of residential premises, which
are the subject to regulation of the Act
on the protection of lessee’s rights of
21 June 2001 (hereinafter referred
to as the Lessee’s Protection Act), the
freedom of parties forming the content
of this additional contractual claim
is limited. A money deposit cannot
exceed twelve times the monthly rent
for the premises and the rent should be
calculated at the rate applicable at the
date of the lease.
• Promissory note – promissory note
issued by the lessee is an effective way
to protect the lessor’s potential claims.
In case of default in payment of rent
or in case of other claims against the
lessee, the lessor can make use of the
promissory note and request the lessee
to redeem it. In case the lessee does not
fulfill its obligations from the promissory
note, the lessor can start the court
procedure against the lessee.
• Surety – in the contract of surety,
the guarantor undertakes to perform
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