When is an occasional lease agreement invalid in Poland?

An occasional lease (najem okazjonalny) agreement is invalid above all if it was not concluded in writing – the Act requires written form on pain of invalidity – or if it suffers from a defect that invalidates any legal act (e.g. it is a sham or contrary to statute). Far more often, mistakes do not make the agreement invalid but cause it to work like a standard lease, and the owner loses the simplified procedure for recovering the premises.

Three different consequences of mistakes

In practice, the word "invalid" tends to be used too broadly. It is worth distinguishing three situations:

When the whole agreement is invalid

No written form

An occasional lease agreement and any amendments to it require written form on pain of invalidity (Art. 19a(6)). Written form is satisfied by the handwritten signatures of both parties (Art. 78 of the Kodeks cywilny – the Civil Code), and its equivalent is electronic form – a declaration bearing a qualified electronic signature (Art. 78¹ of the Civil Code). A plain scanned signature, a click in an app or an exchange of e-mails is not enough. The same applies to annexes: agreeing a new rent verbally does not change the agreement. We explain how to sign the agreement remotely in the article can an occasional lease agreement be signed online.

Sham agreements and breaches of statute

An agreement concluded only for appearances is invalid, e.g. one made to show title to premises to an authority although no one intends to live there (Art. 83 § 1 of the Civil Code). A legal act that is contrary to statute or intended to circumvent it is also invalid (Art. 58 § 1 of the Civil Code).

When only individual clauses are invalid

If only part of the agreement is invalid, the rest remains in force, unless the agreement would not have been concluded without the defective clauses (Art. 58 § 3 of the Civil Code). The most common problems:

• A deposit above the limit – with an occasional lease, it may not exceed six times the monthly rent (Art. 19a(4)). A clause providing for a higher deposit is contrary to statute to the extent it exceeds the limit.
• Contractual penalties for unpaid rent – a contractual penalty can only be stipulated for failure to perform a non-monetary obligation (Art. 483 § 1 of the Civil Code), e.g. failure to hand over the premises. For late payment, interest is due.
• Interest above the maximum – late-payment interest may not exceed, on an annual basis, twice the statutory late-payment interest; if it does, maximum interest is due (Art. 481 § 2¹–2³ of the Civil Code).
• Additional charges – apart from rent, the owner only charges fees outside their control, unless the agreement provides otherwise (Art. 19c(1)); a charge not provided for in the agreement cannot be added unilaterally.

When the agreement is valid but does not work as an occasional lease

• The landlord does not meet the definition – if it is a company or rents out premises as part of a business renting out premises, the agreement does not meet the definition in Art. 19a(1). Such a landlord can conclude an institutional lease.
• No fixed term – an occasional lease is concluded for a fixed term of no more than 10 years. An agreement for an indefinite period is not an occasional lease.
• Missing attachments – without the tenant's statement in the form of a notarial deed, the owner has no enforceable title (Art. 777 § 1 point 4 of the Code of Civil Procedure). Without the indication of other premises and a statement from their owner, the agreement does not meet the requirements of Art. 19a(2).
• No notification to the tax office – if the owner does not notify the tax office (urząd skarbowy) of the agreement within 14 days of the start of the tenancy, Articles 19c and 19d do not apply (Art. 19b(3)), and the exclusions in Art. 19e stop working. The confirmation of notification must be attached to the application for an enforcement clause (Art. 19d(4)(3)).
• Out-of-date address – if the tenant loses the possibility of living at the indicated address, they have 21 days to indicate new premises and provide a statement; otherwise the owner may terminate the agreement with 7 days' notice (Art. 19a(3) and Art. 19d(5)).

A mere clerical error, e.g. a typo in a PESEL number, as a rule does not invalidate the agreement if the parties can be clearly identified. It may, however, make it harder to obtain an enforcement clause, so the details in the agreement, the notarial deed and the statement from the owner of the indicated premises should be identical.

A false statement about the address

The statement from the owner of the indicated premises – what the market calls a "guarantee" (poręczenie) – must express the genuine consent of the person entitled. Forging such a document or using a forged one is an offence under Art. 270 § 1 of the Kodeks karny – the Criminal Code. For the parties, it also means a practical risk: in future, the bailiff (komornik) may move the tenant to precisely the indicated address. So it is worth obtaining the document from a person who actually holds legal title to the premises, or from a legally operating service – our statement options start at 298 zł.

Checklist before signing

1. The landlord is a natural person and the owner of the premises (ask for the land and mortgage register number or another document confirming legal title).
2. The agreement is in writing, for a fixed term (up to 10 years), and states expressly that it is an occasional lease agreement.
3. The deposit does not exceed six times the rent; the agreement sets out the rules for returning it.
4. The agreement lists the cases in which the parties may terminate it – with a fixed-term agreement this is a condition for termination (Art. 673 § 3 of the Civil Code).
5. The rules for rent increases and the list of additional charges are set out in the agreement.
6. The tenant's notarial statement, the indication of other premises and the statement from their owner are attached to the agreement – with identical details of the parties.
7. The parties have agreed who will notify the tax office and when, and that the tenant will receive confirmation.
8. The handover report describes the condition of the premises and the meter readings – the basis for settling the deposit later.

You will find the full list of documents in the article what documents are needed for an occasional lease.

Frequently asked questions