The seller wants 10% of the price at the preliminary agreement, or as a “reservation” of a resale flat, and you do not know whether to pay it as a zadatek (a forfeitable deposit) or a zaliczka (an advance). The answer depends on which risk worries you more. An advance comes back to you if the sale falls through, even on your side, although if you are the one backing out the seller may claim damages (art. 390 § 1 of the Civil Code). A zadatek is lost if you are the one responsible for the notarial deed not being signed, but if the seller backs out, you may withdraw from the contract and demand twice the sum (art. 394 § 1 of the Civil Code). Buying with a mortgage? Then, before you pay a zadatek, make sure the agreement covers a bank refusal. Below we explain how such a reservation differs from a preliminary agreement.
Legal basis: the Civil Code (Kodeks cywilny, k.c.), consolidated text Dz.U. 2026 item 795. All provisions and amounts in this text are stated as of October 2026.
Zadatek and zaliczka: how they differ
The Code regulates the zadatek in art. 394. An advance is not defined as a separate institution. When the sale does not go ahead, an advance is returned as an undue payment: the purpose of the payment was not achieved or its basis ceased to exist (art. 410 § 2 k.c.).
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| Situation | Zadatek (art. 394 k.c.) | Advance (zaliczka) |
|---|---|---|
| The sale agreement is concluded | credited towards the price (§ 2) | settled against the price under the contract |
| The seller backs out | you may withdraw and demand twice the sum (§ 1) | returned to you (art. 410 § 2) |
| You back out | the seller may withdraw and keep the zadatek (§ 1) | returned to you (art. 410 § 2), but the seller may claim damages (art. 390 § 1) |
| The contract is terminated by agreement | returned, not doubled (§ 3) | returned to you |
| Neither party is responsible for non-performance, or both are | returned, not doubled (§ 3) | returned to you |
Art. 394 § 1 opens with the words “unless the contract or custom provides otherwise”. So a contract can arrange the effects of a zadatek differently. That is why you should read the whole zadatek clause in the draft contract, not just its heading.
10% in numbers: what you can gain and lose
An example for a flat at PLN 800,000 with a 10% payment (own calculation based on art. 394 and 410 k.c.):
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| What happens | Paid as a zadatek (PLN 80,000) | Paid as an advance (PLN 80,000) |
|---|---|---|
| The notarial deed is signed | PLN 80,000 credited to the price | PLN 80,000 settled against the price |
| The seller sells to someone else | after withdrawing you may demand PLN 160,000, twice your payment | you get PLN 80,000 back and may claim damages (art. 390 § 1) |
| The bank refuses your mortgage and there is no deed | risk of losing PLN 80,000 (details below) | you get PLN 80,000 back |
| You change your mind | you lose PLN 80,000 | you get PLN 80,000 back; the seller may claim damages (art. 390 § 1) |
The conclusion is simple. A zadatek disciplines both sides. An advance protects you less against a seller who finds a better offer: you are not entitled to double, and you must prove the loss under art. 390 § 1. In return, you do not lose the payment if you run into financing problems.
How much zadatek is “normal”
The Civil Code does not set the amount of a zadatek (art. 394), so the parties agree it. The rankomat.pl portal (updated 25.09.2026) says that in practice it is usually 10-20% of the price. A request for 10% falls within that range.
The amount is negotiable. Treat the zadatek as a sum you are ready to lose if the notarial deed is not signed through your fault. If your financing is secure, a higher zadatek binds the seller more firmly. If you are waiting for a bank decision, propose a smaller zadatek with the rest as an advance, or a zadatek with a mortgage clause.
Mortgage: when the zadatek comes back and when it is lost
Art. 394 § 3 k.c. requires the zadatek to be returned when the contract was not performed because of circumstances for which neither party is responsible. Whether a mortgage refusal is such a circumstance, the Code does not say. The assessment depends on the case, so do not assume in advance that the zadatek will come back.
It is safer to set it out in the preliminary agreement. The clause should contain:
- the loan amount you are applying for and the deadline for the bank’s decision;
- how the refusal is to be documented, for example a written bank decision;
- the effect of a refusal: return of the zadatek at its single amount and the deadline for the refund;
- a date for the sale agreement that leaves room for the mortgage procedure.
If the contract sets no date for the sale agreement and neither party fixes one within a year of signing the preliminary agreement, a claim for conclusion of the sale agreement is no longer possible (art. 389 § 2 k.c.). It is therefore worth writing the date in straight away.
Form of the preliminary agreement: notary or plain writing
A preliminary agreement must specify the essential terms of the future sale agreement, including the parties, the flat and the price (art. 389 § 1 k.c.). Its form determines what you can demand if the other side backs out:
- the weaker effect (art. 390 § 1): you can claim only damages;
- the stronger effect (art. 390 § 2): you can demand that the sale agreement be concluded, but only if the preliminary agreement meets the form required for the sale agreement. A contract obliging a party to transfer ownership of real estate requires a notarial deed (art. 158 k.c.), so the stronger effect comes from a preliminary agreement made before a notary.
Claims under a preliminary agreement lapse one year after the date on which the sale agreement was to be concluded (art. 390 § 3). If the seller backs out, do not delay deciding what to do next.
A claim entered in the land and mortgage register
A claim to the transfer of ownership, including one under a preliminary agreement, can be entered in the land and mortgage register (księga wieczysta) of the flat (art. 16 sec. 2 pt 2 of the Land and Mortgage Registers Act, consolidated text Dz.U. 2026 item 1066). An entered claim is effective against rights acquired later (art. 17). If the seller sells the flat to someone else, your entered claim remains effective against the new buyer too.
The court fee for entering the claim is PLN 150 (art. 43 pt 3 of the Act on Court Costs in Civil Cases, consolidated text Dz.U. 2025 item 1228), and for deleting it half of that, PLN 75 (art. 46). Mind the deadline: one year after the entry the owner may unilaterally demand deletion of the claim if no application has been filed to enter your ownership (art. 19 sec. 1 u.k.w.h.). The basis for the entry is, as a rule, a document with a notarially certified signature (art. 31 sec. 1 u.k.w.h.). A plain written preliminary agreement without certified signatures is therefore not enough to enter the claim. Ask the notary how to file the application.
Reservation agreement or preliminary agreement on the resale market
A reservation agreement is regulated only by the Developer Act (art. 29-34, consolidated text Dz.U. 2026 item 880). It requires written form on pain of invalidity and caps the reservation fee at 1% of the price. More on this in our text on the reservation fee at a developer.
On the resale market a “reservation agreement” is an unnamed contract. There is no 1% cap, and the effects depend solely on its terms. What counts is the content, not the title: if the document obliges the parties to conclude a sale agreement and sets out its essential terms, it meets the definition of a preliminary agreement in art. 389 § 1 k.c. When someone asks for money to “reserve” a resale flat, check:
- who takes the money: the owner entered in section II of the land and mortgage register, or an estate agency;
- whether it is a zadatek, an advance or a fee, and when it is returned;
- how long the reservation lasts and what happens when it expires.
If an agency proposes the reservation, also look at the brokerage agreement when buying a flat and at who pays the estate agent commission.
A contractual penalty instead of a zadatek?
A contractual penalty can secure only a non-monetary obligation (art. 483 § 1 k.c.). A clause imposing a penalty for late payment of the price therefore has no basis in this provision. If the draft contract contains contractual penalties, check what they relate to.
Tax and costs at the preliminary agreement stage
A preliminary agreement or zadatek is not in the list of taxable transactions in art. 1 sec. 1 of the Civil Law Transactions Tax Act (consolidated text Dz.U. 2026 item 191). You do not pay PCC at this stage.
PCC on a resale flat is 2% of its market value. The buyer pays it at the sale agreement, and the notary collects it as tax remitter (art. 4 pt 1, art. 6 sec. 1 pt 1, art. 7 sec. 1 pt 1 lit. a, art. 10 sec. 2 of the Act). Since 31 August 2023 the purchase of a first flat has been exempt from PCC if you meet the conditions of art. 9 pt 17.
If you are a foreigner and do not read Polish
The preliminary agreement, the notarial deed and the entries in the land and mortgage register are in Polish. Before you pay, check a few things:
- ask for a translation of the whole draft contract and check against it above all the clauses on the zadatek or advance, the date of the deed and the refund if the bank refuses: in a dispute a party relies on the Polish text;
- make sure the text says “zadatek” or “zaliczka” outright, with the amount and, for a zadatek, a reference to art. 394 k.c. A word like “reservation” or “deposit” without explanation settles nothing;
- for signing at the notary and, if needed, for documents for the bank, consider a sworn translator (tłumacz przysięgły);
- pay by bank transfer to the account of the owner entered in section II of the register, with the contract and type of payment in the transfer title, and keep the confirmation;
- a mortgage for non-residents depends on the bank: clarify the terms before paying the zadatek and reflect them in the preliminary agreement as described above.
Checklist before paying 10%
- Check the flat’s land and mortgage register. The registers are public and a lookup by number in the Ministry of Justice system is free (art. 2 and art. 36⁴ sec. 6 u.k.w.h.). A printout from the lookup has no force as a document (art. 36⁴ sec. 7). What else to check is covered in the guide what to check in a resale flat before the preliminary agreement.
- Make sure the money is taken by the person entered as owner in section II of the register.
- The contract states plainly “zadatek” or “advance”, with the amount and, for a zadatek, a reference to art. 394 k.c.
- With a mortgage: a clause on returning the zadatek after a documented bank refusal, and a realistic date for the deed.
- The date for concluding the sale agreement is written into the contract (art. 389 § 2).
- Form: a plain written agreement gives the weaker effect, a notarial deed the stronger (art. 390 § 1-2).
- Pay by bank transfer, with a title identifying the contract and the type of payment. Keep the confirmation.
- Consider entering the claim in the land and mortgage register (this needs at least notarially certified signatures, art. 31 sec. 1 u.k.w.h.) and note the deadline from art. 19 sec. 1 in your calendar.
Ready offers on the resale market are in the section resale flats in Warsaw.
See also: cooperative ownership right: should you buy.
FAQ
Which is safer for the buyer: a zadatek or a zaliczka?
It depends which risk worries you more. A zaliczka (advance) comes back to you if the sale falls through, including on your side (art. 410 § 2 of the Civil Code), although if you are the one backing out, the seller may claim damages (art. 390 § 1). A zadatek (forfeitable deposit) is lost if you fail to perform the contract, but if the seller backs out you may withdraw from the contract and demand twice the sum (art. 394 § 1). Legal position as of October 2026.
How much is a zadatek on a resale flat?
The Civil Code does not set the amount (art. 394), so the parties agree it. The rankomat.pl portal (updated 25.09.2026) says that in practice it is usually 10-20% of the price. The amount is what you can lose if the notarial deed is not signed through your fault.
Do I get the zadatek back if the bank refuses my mortgage?
The Code does not answer this directly. Art. 394 § 3 requires the zadatek to be returned where the contract was not performed because of circumstances for which neither party is responsible, but whether a mortgage refusal counts depends on the case. So before you pay, write into the preliminary agreement that on a documented bank refusal the zadatek is returned to you at its single amount. Legal position as of October 2026.
Is PCC tax payable on a zadatek or a preliminary agreement?
No. A preliminary agreement or zadatek is not in the list of taxable transactions in art. 1 sec. 1 of the Civil Law Transactions Tax Act (consolidated text Dz.U. 2026 item 191). You pay 2% PCC on the market value of the flat only at the sale agreement, and the notary collects it. If you are buying your first flat you may be exempt (art. 9 pt 17 of the Act). Legal position as of October 2026.
How does a reservation agreement differ from a preliminary agreement on a resale flat?
A reservation agreement is regulated only by the Developer Act (art. 29-34, consolidated text Dz.U. 2026 item 880), with a fee cap of 1% of the price. On the resale market it is an unnamed contract: there is no 1% cap and the effects depend on its wording. A preliminary agreement is governed by the Civil Code (art. 389-390) and obliges the parties to conclude a sale agreement. Legal position as of October 2026.
What can I do if the seller backs out after I pay a zadatek?
If the payment was a zadatek within the meaning of art. 394 of the Civil Code, you may withdraw from the contract and demand twice the sum. If the preliminary agreement was made as a notarial deed, you may instead demand that the sale agreement be concluded (art. 390 § 2). Claims under a preliminary agreement lapse one year after the date on which the sale agreement was to be concluded (art. 390 § 3). Legal position as of October 2026.
The seller is waiting for 10% and you hold a draft preliminary agreement? Write to us before you transfer the money. Send the link to the listing and we will tell you how we can help with this flat. For resale purchases we work under a brokerage agreement, in which we agree the fee and who pays it.
Jawno · +48 692 649 839 · infojawno@gmail.com
Legal position as of October 2026. This text is for information only and is not legal advice or tax advice.