Developer agreement vs preliminary agreement in Poland: how they differ and which to sign

The developer agreement (umowa deweloperska) and the preliminary agreement (umowa przedwstępna) differ above all in who regulates them and how they protect your money. A developer agreement is always a notarial deed, with an escrow account, an entry of the claim in the land and mortgage register and a statutory right of withdrawal. With an ordinary preliminary agreement under the Civil Code, the form and the safeguards depend on the parties. We explain when a developer must conclude a developer agreement, what a "preliminary" agreement for a completed flat is and what each path costs.

Key facts

• The Developer Act covers not only the developer agreement but also agreements with a developer for a completed unit and an agreement in which the developer undertakes to conclude one of them (Art. 2(1) and (3)).
• The developer agreement and the agreements under Art. 2(1)(2) and (3) are concluded in the form of a notarial deed, and the notary and court costs are split in half with the developer (Art. 40).
• You can withdraw from such an agreement within 30 days if it lacks the required elements or is inconsistent with the prospectus (Art. 43).
• A preliminary agreement under the Civil Code may take ordinary written form, but only in the form of a notarial deed does it give the right to demand that the sale agreement be concluded and to have the claim entered in the land register (fee 150 zł).
• A completed flat can be bought from a developer straight away with a sale agreement – then there is one deed instead of two, and the handover inspection takes place before signing anyway.

Developer agreement vs preliminary agreement – what is the difference?

A preliminary agreement is a construct under Art. 389 of the Civil Code: the parties undertake to conclude a specified agreement (the promised agreement) in the future, for example the sale of a flat. The agreement must set out the essential provisions of the promised agreement, but its form, deposit, deadlines and penalties depend on what the parties agree. If the other party pulls out, your options depend on the form – with ordinary writing, compensation remains; with a notarial deed, you can demand that the agreement be concluded before a court (Art. 390 of the Civil Code).

A developer agreement is the agreement defined in Art. 5(6) of the 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 (the so-called Developer Act). In it the developer undertakes to build the building, establish separate ownership of the unit and transfer it to you, and you undertake to pay the price. Its content is set by the Act (Art. 35), and provisions less favourable to the buyer than the Act are void (Art. 42). We discuss it in detail in the guide Polish developer agreement (umowa deweloperska).

Neither of them transfers ownership – only a second agreement does that. They differ in the level of protection: when buying from a developer it comes from the Act, on the secondary market – only from the content of the agreement.

When does the Act require a developer agreement?

A developer agreement in the strict sense concerns a building that is only now being built – the developer undertakes to build it and transfer ownership of the unit to you (Art. 2(1)(1)). When the building already stands but ownership will pass later, the agreements under point 2 (establishing separate ownership and transferring it) and point 3 (transferring ownership of a unit already separated) come into play.

Situation	Which agreement with the developer	Basis in the Act
A flat under construction or before construction starts	developer agreement	Art. 2(1)(1), Art. 5(6)
The building is complete, the unit is not yet separated, ownership will pass later	an agreement to establish separate ownership and transfer it to the buyer	Art. 2(1)(2)
The unit is separated (has a land register), ownership will pass later	an agreement obliging the developer to transfer ownership	Art. 2(1)(3)
The developer undertakes to conclude one of the above agreements in the future	a "preliminary" agreement covered by the Act	Art. 2(3)
A completed flat, ownership passes at once	a sale agreement	Art. 3 (selected provisions of the Act)
Temporarily withdrawing a unit from the offer	a reservation agreement, fee max. 1% of the price	Art. 29–34

Important: the agreements under Art. 2(1)(2) and (3) are subject to almost the same rigours as the developer agreement – the form of a notarial deed (Art. 40), an information prospectus delivered before signing (Art. 21), a residential escrow account for payments (Art. 5(9)–(10)), an entry of the claim in the land and mortgage register (Art. 38) and the same grounds of withdrawal (Art. 43).

Can a developer conclude a preliminary agreement?

It can, but not "alongside" the Act. Art. 2(3) extends its provisions to an agreement in which the developer undertakes to conclude a developer agreement or another under Art. 2(1)–(2). Calling the document preliminary does not exclude the buyer's protection – what counts is the content, not the title.

In practice you will meet two situations:

• A preliminary agreement for a completed flat from a developer – a document in which the developer undertakes to transfer ownership of a completed unit to you by a set date, and you pay part of the price up front. In substance this is an agreement under Art. 2(1)(2) or (3), so it requires a notarial deed, a prospectus and an escrow account.
• A "preliminary agreement" before the developer agreement – on the primary market this role is usually played by the reservation agreement. The Act limits the reservation fee to 1% of the price from the prospectus (Art. 32) and says when it is refunded. We describe the rules in the article Reservation agreement with a developer.

If a developer proposes a written "preliminary agreement" with a large deposit to an ordinary company account, stop. Pay anything above the reservation fee only into the escrow account named in the notarial deed. How the account and the DFG work is explained in the text Escrow account and DFG, and when a deposit comes back and when it is forfeited – in the article Deposit vs advance.

Comparison: developer agreement, an agreement for a completed unit and a preliminary agreement on the secondary market

Issue	Developer agreement	Agreement with the developer for a completed unit (Art. 2(1)(2)–(3))	Preliminary agreement (Civil Code), secondary market
Form	notarial deed	notarial deed	written or a notarial deed – the parties' choice
Protection of payments	escrow account + DFG	escrow account	contractual only – deposit, advance, escrow deposit
Entry of the claim in the land register	yes, on the basis of the agreement (Art. 38)	yes (Art. 38(2)(4)–(5))	only with a notarial deed
Information prospectus	mandatory	mandatory	not applicable
Maximum notary fee	½ of the § 3 rate, split in half with the developer	½ of the § 3 rate, split in half with the developer	depending on classification – up to the full § 3 rate; the parties decide the split
Right of withdrawal	statutory (Art. 43), including 30 days for defects in the agreement or prospectus	statutory (Art. 43)	only contractual or from a deposit (Art. 394–395 of the Civil Code)
Provisions less favourable than the Act	void (Art. 42)	void (Art. 42)	freedom of contract

Already have a draft agreement from a developer – a developer, "preliminary" or reservation agreement? We will check the draft agreement and the developer's documents, compare them with the prospectus and point out the provisions to negotiate before you make an appointment with the notary.

Developer agreement or sale agreement – what for a completed flat?

For a flat in a building already put into use you usually have two routes:

• A sale agreement straight away (Art. 3). One notarial deed, you pay the whole price and become the owner. The Act applies only selected provisions to it, among others access to documents (Art. 26), information about the unit (Art. 27) and a handover with a report before ownership is transferred (Art. 41(1)–(3)). There is no escrow account and no right of withdrawal under Art. 43 – the money and ownership pass at the same time.
• First an agreement under Art. 2(1)(2) or (3), then the deed transferring ownership. Two notarial deeds, but you gain time – for example to sell your current flat or to release the mortgage – and your payments are protected by an escrow account. Before choosing this route, ask the bank what agreement it requires to pay out the loan.

For a flat under construction, on the other hand, there is no choice: if the developer is only now to build the building and you pay towards the price, the agreement is a developer agreement with the full regime of the Act. What the deed transferring ownership contains and how to prepare for the visit to the notary is described in the article Notarial deed when buying a flat.

Example: a completed flat or one under construction – which agreement and what it costs

Take two developments by the same developer in Wrocław's Krzyki district. According to TM Invest offer data, as of 27.09.2026: in the completed development Apartamenty Krakowska 8 the median price of available 2-room flats (about 40 m²) is 634 421 zł, and in Apartamenty Krakowska 5, under construction (planned completion: Q2 2028) – 657 480 zł. Below we compare the notary and court costs on the buyer's side at maximum rates.

Item (buyer's share)	Completed, sale agreement straight away (634 421 zł)	Completed, first an agreement under Art. 2(1) (634 421 zł)	Under construction, developer agreement (657 480 zł)
1st deed: developer agreement / under Art. 2(1) – half the fee + VAT	–	1 017,11 zł	1 045,48 zł
Entry of the claim in the land register (half of 150 zł)	–	75 zł	75 zł
The deed transferring ownership / sale agreement – fee + VAT	2 034,23 zł	2 034,23 zł	2 090,95 zł
Opening the land register for the unit + registering ownership	100 zł + 200 zł	100 zł + 200 zł	100 zł + 200 zł
Total	2 334,23 zł	3 426,34 zł	3 511,43 zł

How we calculate: the fee under § 3(5) for 634 421 zł is 1 010 zł + 0,4% × 574 421 zł = 3 307,68 zł; half (§ 6) is 1 653,84 zł net, 2 034,23 zł with VAT. With a developer agreement you split that half again with the developer (for 657 480 zł: 849,98 zł net, 1 045,48 zł with VAT). The Act does not decide who pays for the deed transferring ownership – we assumed the buyer.

The difference in costs is about 1,1 thousand zł – small at a price above 600 thousand zł. What matters more is something else: you can see a completed flat before buying and move in quickly, but you pay the whole price at once. For a flat under construction the payments are spread over stages protected by an escrow account, but you wait for the keys – here until 2028. The medians of the two developments are not the same units – they differ in floor and layout.

There is no shortage of completed flats in our catalogue: according to TM Invest offer data, as of 27.09.2026, in Warsaw 37 of 73 developments are buildings already put into use (673 available flats), and in Wrocław 24 of 45 (428 flats). Browse the offers in Krzyki or in the whole Warsaw catalogue – for each development we give the stage of construction.

A preliminary agreement on the secondary market – in brief

When you buy from a private individual, you do not benefit from the Developer Act – you are protected only by the content of the preliminary agreement. With a large deposit choose a notarial deed and remember that claims under a preliminary agreement lapse one year after the day on which the promised agreement was to be concluded (Art. 390 § 3 of the Civil Code). You will find details and deposit scenarios in the article Preliminary agreement for the sale of a flat (in Polish).

Which agreement to sign? A quick cheat sheet

• You want to "hold" a developer's flat for a few days or weeks – a reservation agreement (written, fee max. 1%).
• You are buying a flat under construction – a developer agreement in the form of a notarial deed; no other form is possible.
• You are buying a completed flat and have the whole amount – consider a sale agreement straight away: one deed, lower costs, quicker handover of keys.
• You are buying a completed flat but need time (a mortgage, selling your current flat) – a notarial agreement under Art. 2(1)(2) or (3) with payments into the escrow account.
• You are buying from a private individual – a preliminary agreement under the Civil Code, preferably notarial with a large deposit.

When you can withdraw and what then happens to your payments is explained in the article Withdrawal from the developer agreement.

Frequently asked questions

Summary

You buy a flat under construction on the basis of a developer agreement – at a notary, with an escrow account and the buyer's statutory rights. For a completed flat from a developer you sign a sale agreement straight away, or a notarial obligation agreement, sometimes called preliminary – the Act covers it anyway. An ordinary preliminary agreement is the domain of the secondary market, where safety is decided by the form and the clauses on the deposit.

Before you sign any agreement with a developer, ask us to check the developer or reservation 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 help with buying from a developer, usually with no commission – the fee is typically paid by the developer.

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

Sources

• 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, 5, 21, 26, 27, 29–34, 38, 40–43, 48
• Act – Civil Code, consolidated text Dz.U. 2026 item 795 (in Polish) – Art. 158, 389, 390, 394, 395
• Regulation of the Minister of Justice on the maximum rates of the notary fee, consolidated text Dz.U. 2024 item 1566 (in Polish) – § 3, § 6
• Act on Court Costs in Civil Cases, consolidated text Dz.U. 2025 item 1228 (in Polish) – Art. 42, 43, 44
• Flat prices: TM Invest developments catalogue, as of 27.09.2026