Is a deposit (zadatek) refundable? Zadatek vs zaliczka when buying a flat in Poland (2026)

Is a deposit (zadatek) refundable? As a rule, no – if you pull out of the purchase through your own fault, the seller keeps the deposit. A deposit comes back in a single amount when the parties terminate the agreement, or when neither party is responsible for the non-performance or both are (Art. 394 § 3 of the Civil Code), and if the seller is at fault you may demand double the amount. An advance (zaliczka) is, as a rule, returned regardless of who pulled out. When buying from a developer there is a third form – the reservation fee, limited by law to 1% of the price. Below we compare all three and calculate them on the example of a flat for 700 thousand zł.

Key facts

• A deposit (zadatek) (Art. 394 § 1 of the Civil Code): if the buyer does not perform the agreement, the seller keeps the deposit; if the seller does not perform it, the buyer may demand twice the deposit.
• A deposit is returned in a single amount when the parties terminate the agreement, or when neither party is responsible for the non-performance or both are (Art. 394 § 3 of the Civil Code).
• An advance (zaliczka) is a part of the price paid up front – on withdrawal from a reciprocal agreement the parties return to each other what they received (Art. 494 § 1 of the Civil Code), and damages are claimed under the general rules.
• The reservation fee at a developer: at most 1% of the price from the prospectus, credited towards the price, refunded if a mortgage is refused, and refunded in double if the developer does not honour the reservation (Art. 32 and 34 of the Developer Act).
• The Developer Act does not provide for a deposit – payments under the developer agreement go to a residential escrow account according to the schedule (Art. 8).

Deposit vs advance – how do they differ?

A deposit is a sum given when the agreement is concluded that is meant to "discipline" both parties. The Civil Code describes three situations. If the agreement is performed, the deposit is credited towards the price (Art. 394 § 2). If one party does not perform it, the other may, without setting an additional deadline, withdraw from the agreement and keep the deposit it received or – if it was the one that gave it – demand a sum twice as high (Art. 394 § 1). If the agreement is terminated or does not come about for reasons for which nobody is responsible (or both parties are), the deposit is returned and the obligation to pay the double amount falls away (Art. 394 § 3).

An advance has no separate definition in the Civil Code. It is simply a part of the price paid earlier. If the sale agreement does not come about and a party withdraws from a reciprocal agreement, it returns to the other everything it received from it and may additionally demand compensation for damage under the general rules (Art. 494 § 1 of the Civil Code). In practice this means that an advance also comes back to a buyer who has changed their mind, and a seller who wants to get something more must prove a specific loss.

An important caveat: Art. 394 § 1 applies "in the absence of a contrary contractual provision or custom". The parties may therefore modify the effects of a deposit in the agreement – so always read the whole clause, not just the word in the heading.

Advance or deposit – which is better?

It depends which side you are on and how certain your purchase is. A buyer with a mortgage who has no bank decision yet risks less with an advance. A buyer who wants a particular flat and fears that the seller will accept a higher offer gains with a deposit – because breaking the agreement then costs the seller twice the payment. A seller almost always prefers a deposit. A sensible compromise is a deposit with a well-written mortgage clause – we discuss it in detail in the article on the preliminary agreement for the sale of a flat (in Polish).

Deposit, advance and reservation fee – a comparison

The table below sets out the effects of the three forms of payment in typical situations. The "reservation fee" column concerns a reservation agreement with a developer (also when buying a completed unit from a developer – Art. 3 of the Developer Act).

Situation	Deposit (zadatek)	Advance (zaliczka)	Reservation fee
Legal basis	Art. 394 of the Civil Code	no separate regulation; refund on withdrawal – Art. 494 of the Civil Code	Art. 29–34 of the Developer Act
How much can be paid	as much as the parties agree	as much as the parties agree	at most 1% of the price from the prospectus
The agreement is concluded	credited towards the price	credited towards the price	credited towards the price, goes to the escrow account within 7 days
The buyer pulls out without a valid reason	the seller may withdraw and keep the deposit	as a rule refunded; the seller may claim a proven loss	the Act does not require a refund – the reservation agreement decides
The seller / developer pulls out	the buyer may withdraw and demand twice the amount	refund + possible compensation for a proven loss	refund in double
The bank refuses a mortgage	refund if neither party is responsible for non-performance – without a mortgage clause a dispute is possible	refund	refund where the refusal results from a negative assessment of borrowing capacity
Termination by mutual agreement	refund in a single amount	refund	as the parties agree

Example: a flat for 700 thousand zł – how much do you risk with each form of payment?

Assumptions: the flat's price is 700 000 zł. In the variant with a preliminary agreement the buyer pays 70 000 zł (10% of the price) – once as a deposit, once as an advance. In the variant with a developer the buyer signs a reservation agreement with the maximum permitted fee: 1% × 700 000 zł = 7 000 zł. We check three scenarios in which the purchase does not happen.

Scenario	Deposit 70 000 zł	Advance 70 000 zł	Reservation fee 7 000 zł
1. The buyer changes their mind (for example found another flat)	loses 70 000 zł	gets back 70 000 zł; risk: a claim for a proven loss	loses up to 7 000 zł – depending on the agreement
2. The seller sells the unit to someone else	may demand 140 000 zł (a gain of 70 000 zł)	gets back 70 000 zł + compensation if they prove a loss	receives 14 000 zł (a gain of 7 000 zł)
3. The bank refuses a mortgage because of borrowing capacity	gets back 70 000 zł where neither party is responsible (best with a mortgage clause)	gets back 70 000 zł	gets back 7 000 zł without delay
The buyer's maximum loss	70 000 zł	no loss from the payment itself (apart from possible compensation)	7 000 zł

Conclusion: a 10% deposit is a serious stake for both sides – the buyer risks 70 thousand zł, and the seller the same amount "in the buyer's favour". The reservation fee is ten times smaller, and its refund on a mortgage refusal follows directly from the Act, with no need to negotiate a clause. With an advance the buyer risks least, but it also protects them least against a seller who gets a better offer.

Holding a reservation or preliminary agreement and not sure the payment is properly described? We will check the draft agreement and the developer's documents – we will point out the provisions on the deposit, the fee and refunds that are worth negotiating before you sign.

How to write a deposit into the agreement to avoid a dispute

Disputes over refunds most often come from imprecise names. A sum described as "security", "prepayment" or "payment towards the price" may be treated as an advance, even if the parties "meant" a deposit. A few rules:

• Name the payment directly – "a deposit within the meaning of Art. 394 of the Civil Code" or "an advance towards the price".
• Pay when the agreement is concluded – the Code speaks of a deposit "given when the agreement is concluded". If the transfer is to be made later, set a date and attach the confirmation.
• Describe the no-mortgage scenario – how many banks, for what amount, by when, how to prove the refusal and within what time the deposit comes back.
• Watch out for modifications – a clause that the deposit is forfeited "in every case where the agreement is not concluded" changes the effects under Art. 394 to your disadvantage.
• Consider a contractual right of withdrawal (Art. 395 of the Civil Code) within a set time – it gives both parties a clear "exit" without a dispute over fault.

How much is a deposit when buying a flat?

The rules specify neither a minimum nor a maximum deposit (the 1% limit applies only to the reservation fee at a developer). On the secondary market about 10% of the price is common, but that is custom, not a norm. A deposit that is too low protects poorly – with a higher offer it may pay the seller to return the double amount. One that is too high hurts the buyer if something goes wrong with the financing.

A double deposit – when can you demand it?

Twice the deposit is due to the buyer when the seller has not performed the agreement and the buyer exercises the right of withdrawal (Art. 394 § 1 of the Civil Code). The law does not require an additional deadline to be set. Give the seller a written statement of withdrawal and call on them to pay – with a deposit of 70 000 zł that is 140 000 zł. If you would rather buy the flat, though, and the preliminary agreement is in the form of a notarial deed, you can instead demand that the agreement be concluded before a court – then you do not withdraw, so you do not demand a double deposit. The differences between the forms of agreement are explained in the text developer agreement vs preliminary agreement.

A deposit at a developer – is it even permitted?

The Act on the protection of the rights of a purchaser of a residential unit (the Developer Act) does not use the concept of a deposit. Instead it provides two forms of payment:

• the reservation fee – voluntary, up to 1% of the price from the prospectus, credited towards the price; after the developer agreement is signed, the developer transfers it to the residential escrow account within 7 days (Art. 32(2)–(4)). The rules of reservation are described in the article reservation agreement with a developer;
• payments into the residential escrow account – the buyer pays after successive construction stages set out in the schedule are completed, and the amount of the payments depends on the actual progress of the works (Art. 8(1)–(3)). The developer agreement must state the amount, dates and manner of these payments and the account number (Art. 35(1)(9)–(10)).

The Act covers not only the developer agreement itself but also the agreement in which the developer undertakes to conclude it (Art. 2(3)). Provisions less favourable to the buyer than the provisions of the Act are void, and the Act's provisions apply in their place (Art. 42). So if a developer proposes a "deposit" or another payment outside the reservation fee and the escrow account, ask three questions: into which account the money will go, on what basis, and when it is forfeited. A payment into the company's ordinary account, outside the escrow account, is not protected like the funds in the account – more about this in the article on the escrow account and DFG.

What happens to the money when you withdraw from the developer agreement?

When the buyer withdraws on the statutory grounds of Art. 43 (for example missing required elements of the agreement, inconsistency with the prospectus, failure to transfer ownership on time), the agreement is deemed not concluded, and the buyer bears no costs of withdrawal. It is also impermissible to stipulate that the buyer may withdraw only "on payment of a specified sum" (Art. 44(1)–(2)). The developer returns the funds paid out to it from an open escrow account at the latest within 30 days (Art. 44(3)). A clause allowing the developer in such a situation to keep the payment like a deposit would be less favourable than the Act. We discuss all the grounds for withdrawal in the text withdrawal from the developer agreement.

Mind the other side of the coin: the developer may withdraw from the agreement if the buyer does not pay an instalment on time despite a written demand with a 30-day deadline (Art. 43(7)), and also when the buyer, despite being summoned twice, does not appear for the handover or the deed (Art. 43(8)). The settlement then depends, among other things, on the contractual penalties in the agreement – check their amount before you sign (more in the guide to the developer agreement).

How much is the reservation fee in our offer?

To show the scale of the difference between the reservation fee and a "market" 10% deposit, we calculated the median prices of flats according to TM Invest offer data, as of 27.09.2026.

Flat (median price)	Price	Max. reservation fee (1%)	10% deposit for comparison
2 rooms, Warsaw	755 824 zł	7 558 zł	75 582 zł
3 rooms, Warsaw	935 503 zł	9 355 zł	93 550 zł
2 rooms, Wrocław	662 405 zł	6 624 zł	66 241 zł
3 rooms, Wrocław	878 658 zł	8 787 zł	87 866 zł

The catalogue also has plenty of units in buildings already put into use – 673 available flats in Warsaw and 428 in Wrocław. For such a purchase the developer often offers a sale agreement or a preliminary agreement straight away, but the reservation fee is still subject to the 1% limit (Art. 3 of the Act). You can browse the offers in the catalogue for Warsaw and Wrocław.

Is a zadatek refundable? Situations step by step

The answer depends on why the transaction falls through. We list the most common situations when buying a flat (Art. 394 of the Civil Code).

Situation	What happens to the deposit	Basis
The agreement is performed (you buy the flat)	The deposit is credited towards the price	Art. 394 § 2 CC
You pull out of the purchase through your own fault	The seller keeps the deposit	Art. 394 § 1 CC
The seller pulls out or fails to perform through their own fault	You may demand twice the amount of the deposit you paid	Art. 394 § 1 CC
The parties terminate the agreement by mutual consent	The deposit is returned in a single amount	Art. 394 § 3 CC
The transaction fails for reasons for which nobody is responsible or both parties are	The deposit is returned in a single amount	Art. 394 § 3 CC

Watch out with a mortgage: the bank’s refusal to lend to you does not, by itself, guarantee that the deposit is returned – whether you are responsible for the non-performance may be decided in a dispute and, ultimately, by a court. So state explicitly in the preliminary agreement that the deposit is returned if you do not get the loan by a set date. With a developer the reservation fee is regulated by statute – we describe it in the article: the reservation agreement with a developer. Looking for a flat before you pay anything? See the catalogue of new flats.

Frequently asked questions

Summary

A deposit binds both parties: a buyer who pulls out loses the payment, and a seller pays double. An advance as a rule comes back, so it protects the buyer from loss but poorly against a dishonest seller. At a developer different rules apply – a reservation fee of up to 1% of the price and payments into the escrow account according to the schedule, and provisions worse than the Act are void. For a flat priced at 700 thousand zł the difference in risk is 70 000 zł with a deposit against 7 000 zł with a reservation fee.

Before you pay any sum to a developer, ask us to check the reservation or developer agreement – we will check the draft agreement and the developer's documents and point out provisions to negotiate. If you are still choosing a flat, we will help you buy from a developer – usually with no commission for the buyer, as the fee is typically paid by the developer.

Legal status as of September 2026. The calculations are indicative, and the article does not constitute legal advice – it is worth consulting the content of a specific agreement with a notary or a lawyer.

Sources

• Act – Civil Code, consolidated text Dz.U. 2026 item 795 (in Polish) – Art. 394, 395, 494
• Act on the protection of the rights of a purchaser of a residential unit or a single-family house and on the Developer Guarantee Fund, consolidated text Dz.U. 2026 item 880 (in Polish) – Art. 2, 3, 8, 29–35, 42–44
• Flat prices: TM Invest developments catalogue, as of 27.09.2026