Exclusive or Open Estate Agency Agreement in Poland – What to Watch For (2026)

An exclusive agency agreement means that for a set period you sell your flat only through one agency, while an open agreement lets you work with several agencies and look for a buyer yourself. The law does not decide which is better – it only requires written or electronic form on pain of invalidity. How much you pay and whether you can withdraw is decided by specific clauses: the type of exclusivity, duration, termination, protection period and contractual penalties. Below we discuss each of them and show how commission is calculated in different scenarios for a flat worth PLN 700 thousand.

Key facts

• An agency agreement requires written or electronic form on pain of invalidity (art. 180 para. 3 of the Real Estate Management Act) – an oral agreement or an "I accept" in an email is not enough.
• A copy of the agent's liability insurance policy must be attached to the agreement; its absence after a written demand and 7 days gives the right to terminate with immediate effect (art. 181 para. 3a–3b).
• A consumer may withdraw from an agreement concluded away from business premises or at a distance within 14 days without giving a reason, and after an unarranged home visit – within 30 days (art. 27 of the Consumer Rights Act).
• Exclusivity can be "simple" (only one agency) or "full" – with commission also on a private sale. For a flat worth PLN 700 thousand and a rate of 2% + VAT the fee is PLN 17 220.
• A grossly excessive contractual penalty may be reduced by the court (art. 484 § 2 of the Civil Code), and in a standard-form contract with a consumer it is, in case of doubt, an unfair term (art. 385³ point 17 of the Civil Code).

Exclusive agency agreement vs open agreement – how do they differ?

The Real Estate Management Act leaves the scope of agency services to the parties' contract (art. 179b and 180 para. 3). The terms "exclusivity" and "open agreement" do not appear in the Act – they are names from market practice, and their content depends on the specific document.

• Open agreement – you can sign agreements with several agencies and at the same time sell on your own. You pay commission to the agency that brought about the transaction. No one is guaranteed a fee, so agencies usually invest less in marketing your offer.
• Simple exclusivity – for a set period you cannot instruct another agent to sell, but a sale to a buyer you find yourself does not give rise to commission.
• Full exclusivity (also found as "exclusivity with commission on own sale") – the agency reserves a fee or contractual penalty for every sale during the term of the agreement, even when you find the buyer yourself or through friends.

In return for exclusivity many agencies offer a lower rate or a broader package: a photo shoot, a floor plan, paid promotion of the advert. A general comparison of selling through an agency and on your own is in the article Selling a flat through an agency or on your own?

Contract clause	Exclusivity	Open agreement	What to watch for
Number of agencies	one	any	with an open one – who "introduced" the buyer if they viewed the flat with two agencies
Private sale	depends on the variant: no commission (simple) or with commission/penalty (full)	no commission	look for the words "sale without the agent's involvement", "own sale"
Duration	fixed term, e.g. 3–6 months	often indefinite	automatic extension after the term expires
Termination	often excluded or with a penalty during the exclusivity period	usually with a short notice period	notice period and the form of the statement
Protection period	as standard yes	as standard yes	length of the period and a list of clients handed over in writing
Contractual penalty	common	less often	amount in relation to the commission; events that trigger it
Commission rate	often lower	often higher	net or gross (VAT 23%) and when it falls due

Form of the agreement and the agent's duties – what the law says

The same requirements apply to every agreement. First, form: an agency agreement is invalid if it was not concluded in writing or in electronic form (art. 180 para. 3). Electronic form is a statement bearing a qualified electronic signature (art. 78¹ of the Civil Code), so a confirming email or a signature "with a finger" on a tablet is not enough.

Second, insurance: the agent must hold liability insurance, also for persons acting under their supervision (art. 181 para. 3). A copy of the policy valid on the day of signing is to be an annex to the agreement (art. 181 para. 3a). If there is no policy, call on the agency in writing; after an unsuccessful 7 days you may terminate the agreement with immediate effect (art. 181 para. 3b) – an exclusive agreement as well.

An exclusive agreement with an estate agency – pros and cons

Exclusivity makes sense when the agency really works for your offer in return: it prepares materials, pays for promotion and conducts negotiations. You have one contact and one consistent advert instead of several at different prices.

The downsides appear when cooperation does not go well:

• Dependence on one agency – if the agent is not very active, you cannot use another throughout the exclusivity period.
• Commission on a private sale – in the full variant you will pay even if a neighbour or a relative buys the flat.
• Automatic extension – a 3-month agreement can turn into another 3 if you do not submit a statement on time.
• Penalty for withdrawing the offer – e.g. when you change your mind about selling or decide to let the flat.

If a tenant lives in the flat, agree with the agency the rules for viewings and who contacts the tenant – we describe the details in the article Selling a flat with a tenant.

Example: 2% + VAT commission on a flat worth PLN 700 thousand in different scenarios

Suppose you sell a flat for PLN 700 000 and the agency's rate is 2% net. The net commission is PLN 14 000, VAT 23% – PLN 3 220, together PLN 17 220 gross. Whether you pay this amount depends on the type of agreement and on who found the buyer:

Scenario	Open agreement	Simple exclusivity	Full exclusivity
Your agency found the buyer	17 220 PLN	17 220 PLN	17 220 PLN
You sell on your own during the term	no commission	no commission	17 220 PLN (or a contractual penalty)
You sell through another agency during the term	nothing to this agency (you pay the other one's commission)	risk of a contractual penalty + the other agency's commission	risk of a contractual penalty + the other agency's commission
After expiry a client introduced by the agency buys, within the protection period	17 220 PLN	17 220 PLN	17 220 PLN
After expiry someone not on the agency's list buys	no commission	no commission	no commission

The most expensive is the "double" scenario: under exclusivity you sell through a second agency. If the first has in its agreement a penalty equal to the commission, and the second charges 2.5% + VAT (PLN 21 525), the total cost can reach PLN 38 745 – more than double a single commission. That is over 5% of the flat's price. What agencies actually charge in Warsaw and Wroclaw, and how the commission reduces tax on a sale within 5 years, we explain in the article Estate agent commission 2026.

Selling a flat in Warsaw or Wroclaw? Order a valuation and a sales plan – we will discuss the terms of cooperation and show you the draft agreement before you sign anything.

Duration and termination of an agreement with an estate agency

An agency agreement has no separate regulation in the Civil Code. To contracts for services not regulated by other provisions, the rules on mandate contracts apply accordingly (art. 750 of the Civil Code), and under them the principal may terminate the mandate at any time, paying for acts performed to date and reimbursing expenses; on termination without good reason – also compensating the damage (art. 746 § 1). The right to terminate for good reasons cannot be waived in advance (art. 746 § 3). Whether and to what extent these rules apply to a specific agency agreement is, however, sometimes disputed – so in practice the most important thing is the wording of the agreement itself.

Before signing, check:

• Fixed or indefinite term – an indefinite agreement of a continuing nature can be terminated observing the contractual notice period, and where there is none – with immediate effect (art. 365¹ of the Civil Code).
• Length of exclusivity – match it to the realistic time to sell a flat in your location. How long the individual stages take we describe in the article How long does it take to sell a flat?
• Extension – whether after the term the agreement expires or turns into an open agreement or another exclusivity period. An extension with a grossly short deadline for objection is, in case of doubt, an unfair term (art. 385³ point 18 of the Civil Code).
• Symmetry – a clause that lets only the agency end the agreement and not you is, in case of doubt, also treated as unfair (art. 385³ point 14 of the Civil Code).

The protection period after an agency agreement

The protection period (also called the waiting period) is the time after the agreement expires or is terminated during which the agency can still claim commission if the flat is bought by a person it previously introduced. It protects the agency from the parties "waiting out" the agreement. The rules do not set its length – the agreement does.

A reasonable clause has three features: the period is clearly defined, it covers only people to whom the agency actually showed the flat or whose details it passed on, and the list of those people is handed to you in writing when the agreement ends. Beware of clauses covering "every client who learned about the offer" – it is then hard to prove that you found the buyer yourself.

A contractual penalty in an agency agreement – when is it a problem?

A contractual penalty can be reserved only for non-performance of a non-monetary obligation (art. 483 § 1 of the Civil Code) – e.g. the duty not to sell through another agency or to make the flat available for viewings. It is due in the reserved amount regardless of the amount of damage, but you can demand its reduction if the obligation was performed in a significant part or the penalty is grossly excessive (art. 484 § 1–2).

As a consumer you have additional protection. Standard-form clauses you did not individually negotiate do not bind you if they shape your rights contrary to good practice, grossly violating your interests (art. 385¹ § 1 of the Civil Code). In case of doubt, among others, grossly excessive contractual penalties or withdrawal fees (art. 385³ point 17) and an obligation to pay a fixed sum imposed solely on the consumer in the event of withdrawing from the contract (point 16) are considered unfair. The assessment is made by the court, and in relation to standard forms used by a business – also by the President of UOKiK (the Office of Competition and Consumer Protection) in a decision (art. 23a–23b of the Act on competition and consumer protection).

If the agency wants a penalty for simply withdrawing the flat from sale, negotiate in its place reimbursement of documented costs.

14 days to withdraw – when does it apply?

If you sign the agreement away from the agency's premises (e.g. in your own flat during a viewing) or at a distance, as a consumer you may withdraw from it within 14 days of conclusion, without giving a reason (art. 27 para. 1 and art. 28 point 2 of the Consumer Rights Act). For an unarranged visit by the business to your home the period is 30 days (art. 27 para. 2). If the agency did not inform you of this right at all, it expires only 12 months after the end of the basic period (art. 29 para. 1).

If at your express request the agency began to act before the period expired, on withdrawal you will pay proportionally for what it has already performed (art. 35), and after full performance of the service with your consent the right of withdrawal expires (art. 38 para. 1 point 1). An agreement signed at the agency's office does not give this right.

Checklist before signing an agency agreement

• The net and gross rate and the moment of payment – it is safer at the deed transferring ownership than at the preliminary contract.
• Duration, extension, the notice period and form of termination.
• The protection period and the duty to hand over a list of clients.
• Contractual penalties – for what and in what amount.
• The specific scope of services (photos, adverts, viewings, documents, presence at the notary) and the attached liability policy.
• The minimum asking price and the rules for changing it – without your consent the agency should not lower it.

Selling in order to buy a new flat? According to TM Invest offer data as of 27.09.2026, the median price of a 2-bedroom flat from a developer is PLN 755 824 in Warsaw and PLN 662 405 in Wroclaw – see the current new flats in Warsaw and new flats in Wroclaw. The moment of paying commission and the earnest money are worth matching with the preliminary agreement for the sale of a flat.

Frequently asked questions

Summary

An exclusive agency agreement is neither good nor bad in itself – its variant and details matter. Before signing, check whether the exclusivity covers a private sale, how long it binds you and whether it extends, how long the protection period lasts, how large the contractual penalties are and whether the liability policy is attached. The whole process – from valuation to the notarial deed – is described in the guide Selling a flat step by step.

Want to sell a flat in Warsaw or Wroclaw? Order a valuation and a sales plan – we will help you prepare and carry out the sale, and you will learn the terms of cooperation in writing before signing the agreement.

Legal position as of September 2026. The description of typical agency agreement clauses is general, the calculations are examples, and the article is not legal advice – assessing a specific agreement requires analysis of its content.

Sources

• Real Estate Management Act – consolidated text Dz.U. 2026 item 399 (art. 179a, 179b, 180 para. 3, 180a, 181 para. 3–3b, 181a).
• Civil Code – consolidated text Dz.U. 2026 item 795 (art. 78¹, 365¹, 385¹, 385³, 483, 484, 746, 750).
• Consumer Rights Act – consolidated text Dz.U. 2026 item 1244 (art. 27–29, 35, 38).
• Act on competition and consumer protection – consolidated text Dz.U. 2025 item 1714 (art. 23a–23b).
• Flat prices: TM Invest investment catalogue, as of 27.09.2026.