Reserved a flat and the bank still has not decided, or has already said no? The answer depends on the stage you are at. If you have only signed a reservation agreement (umowa rezerwacyjna) and the bank refuses the loan because of a negative assessment of your creditworthiness, the developer must refund the reservation fee without delay (art. 34 ust. 1 pkt 1 of the Developer Act). If you have already signed the developer agreement (umowa deweloperska) at the notary, the Act gives you no right to withdraw because of a mortgage refusal. Among the 12 cases in art. 43 ust. 1 there is no such ground. In that case you are protected only by what is written in the agreement itself. The safe order is therefore: reservation, the bank’s decision, and only then the notarial deed. If the deed has to come earlier, the agreement should contain a mortgage clause (klauzula kredytowa).
Legal basis: the Act on the protection of the rights of a buyer of a dwelling or single-family house and on the Developer Guarantee Fund (the Developer Act, ustawa deweloperska), consolidated text Dz.U. 2026 poz. 880; the Civil Code (k.c.), Dz.U. 2026 poz. 795; the Mortgage Credit Act, Dz.U. 2025 poz. 720. Legal position as at October 2026. The amendment that took effect on 2 October 2026 (art. 50 ust. 2 and art. 51, Dz.U. 2025 poz. 1669) and the amendment from 11 November 2026 (art. 19b, Dz.U. 2026 poz. 1077) do not affect the provisions described here.
Which stage are you at and what are you entitled to?
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| Your situation | What the law says | What you can recover |
|---|---|---|
| You have a reservation agreement and the bank refused because of a negative creditworthiness assessment | Refund of the fee without delay (art. 34 ust. 1 pkt 1) | The whole reservation fee, which is at most 1% of the prospectus price |
| You have a reservation agreement but are pulling out for another reason | This case is not in the closed list in art. 34 | Whatever the reservation agreement provides; developers usually keep the fee |
| You have a developer agreement without a mortgage clause | No statutory right to withdraw over a mortgage refusal (art. 43 ust. 1) | Only what the developer agrees to |
| You have a developer agreement with a mortgage clause | Contractual right of withdrawal (art. 395 k.c.) or a condition (art. 89 k.c.) | Whatever the clause provides; the Act does not set this |
Reservation: when the fee comes back and when it is lost
A reservation agreement must be in writing on pain of invalidity (art. 30 ust. 1) and for a fixed period. If you are applying for a mortgage, that period should allow for the time the bank needs for its decision or a promise to grant the loan, known as a promesa (art. 31 of the Developer Act, art. 3 ust. 1 and art. 14 ust. 2 of the Mortgage Credit Act). The reservation fee may not exceed 1% of the flat price in the information prospectus (art. 32 ust. 2). For a flat at PLN 690,000 that is at most PLN 6,900 (own calculation, legal position as at October 2026).
When the fee comes back. Art. 34 ust. 1 lists three cases of immediate refund:
- you did not get a mortgage because of a negative creditworthiness assessment within the meaning of art. 4 pkt 11 of the Mortgage Credit Act;
- the developer did not perform the reservation agreement;
- the developer changed the prospectus or its annexes and did not tell you.
A refund under point 1 applies where you did not obtain a positive credit decision or a promise to grant the loan (promesa) because of a negative creditworthiness assessment. The provision refers to art. 31, that is, to a reservation made while you are applying for a loan, so state this in the reservation agreement.
The Act does not require refusals from several banks, or from three. If the loan is refused you recover the fee at its single amount. A double refund is due, among other cases, where the developer fails to perform the reservation agreement (art. 34 ust. 3).
When the fee is not protected. The Act does not say what happens to the fee if you pull out yourself, for example because you found another flat or did not apply in time. In market practice the developer usually keeps it in that case. Keep the bank’s refusal in writing or on a durable medium (trwały nośnik) and check that it shows the refusal concerns creditworthiness.
For more on the reservation itself, see the developer reservation agreement step by step.
Developer agreement signed but no mortgage: why the Act will not help
The developer agreement is made as a notarial deed (art. 40 ust. 1). The reservation fee is credited towards the price, and the developer pays it into the escrow account (mieszkaniowy rachunek powierniczy) within 7 days of the developer agreement being concluded (art. 32 ust. 3–4). The protection in art. 34 concerns the reservation agreement. Once you have a developer agreement, the withdrawal rules in art. 43 and the text of the agreement itself apply.
Art. 43 ust. 1 lists 12 situations in which you may withdraw from a developer agreement under the Act, for example where the developer does not transfer the right to you on time and you have set an additional 120 days (art. 43 ust. 1 pkt 6, ust. 3). You can judge in advance whether the developer will make it; we cover that in how to check whether the developer will hand over on time. A mortgage refusal is not in that list. In those statutory cases you pay no withdrawal fee or withdrawal costs (art. 44 ust. 1–2), and the developer refunds the money released to it from the escrow account within 30 days of receiving your statement (art. 44 ust. 3). If you withdraw because of a mortgage refusal, that is, on the basis of the agreement and not art. 43 ust. 1, the ban on withdrawal fees and costs (art. 44 ust. 1–2) does not apply. The amount and the deadline for the refund therefore have to be written into the agreement itself.
If the agreement is already signed, open the deed and find two places. A developer agreement must set out the conditions of withdrawal under art. 43 and of the refund of payments from the escrow account (art. 35 ust. 1 pkt 13), and the amount of interest and contractual penalties, if any are provided for (pkt 14). Also check whether there is a separate contractual right to withdraw if you do not get a mortgage next to those provisions, and what it costs to leave the agreement.
The bank is stalling and the deadline is close: what to do step by step
1. Count the deadlines. Under the Mortgage Credit Act the bank delivers its credit decision on the 21st day from receiving the application. It may do so earlier only with your consent (art. 14 ust. 2). A positive decision binds the bank for at least 14 days (art. 14 ust. 6). Note the date you applied and ask the bank or your adviser in writing when the decision will be ready. Compare it with the end of the reservation.
2. If the reservation ends before the decision, ask for an extension. Do it before the deadline passes and agree the extension in writing. The developer does not have to agree, but it is usually cheaper than the risk of the reservation lapsing with nothing settled.
3. Do not sign the developer agreement “just in case”. Without a credit decision, or without a mortgage clause in the deed, you take on a risk the Act does not carry for you.
4. If the agreement is signed and the loan money will not arrive on time, act before the payment date. The developer may withdraw if you do not pay on time or in the right amount despite a written demand to pay the arrears within 30 days of delivery of the demand. The exception is force majeure (art. 43 ust. 7). So you have time, but it is limited. Use it for:
- an application to another bank or lender;
- a conversation with the developer about moving the payment date. Changing the schedule needs its consent;
- assigning the claims under the developer agreement to another person (cesja). The Act allows it if the agreement concerns one unit and you have not assigned claims under another developer agreement in the previous 3 years (art. 37a ust. 1). The assignment is made as a notarial deed (art. 40 ust. 1). The restriction does not apply to a transfer to a person in tax group I or II under the inheritance and gift tax act (art. 37a ust. 2). For the new buyer to take over the duty to pay the rest of the price the developer must consent (assumption of debt, art. 519 § 2 pkt 2 k.c.), so ask about it before you start looking for a taker.
The mortgage clause: what to write in before you go to the notary
The best time to negotiate is before the reservation, and at the latest before the deed. The developer must give you the information prospectus free of charge, on a durable medium, before the reservation agreement (art. 21 ust. 1–2). Ask for the draft developer agreement at the same time. The clause may take the form of a contractual right of withdrawal (art. 395 k.c.) or a condition (art. 89 k.c.). To avoid a dispute later, check whether the clause answers these questions:
- Until when can you withdraw? A contractual right of withdrawal is reserved for a fixed period (art. 395 § 1 k.c.), so write a specific date, not a “reasonable time”.
- Which refusal counts? One negative decision or refusals from several banks, and if several, how many.
- What loan amount? If the bank grants less than you need, is that also “no mortgage”? Write in a minimum amount.
- Which document do you present? The bank’s refusal in writing or on a durable medium.
- What comes back and when? The refund amount, including the reservation fee credited towards the price, and the refund deadline.
- Do you pay a withdrawal fee or a contractual penalty? With a mortgage clause the answer should preferably be “no”.
- To whom and at what address do you submit the statement of withdrawal? The form is set by the Act: in writing, with a notarially certified signature and consent to the deletion of your claims from the land and mortgage register (art. 45 ust. 1).
Compare these provisions with what the developer stated in the prospectus. We explain how in what to check in the information prospectus.
If you finance the purchase partly in cash and partly with a mortgage, also check when the instalments in the schedule fall due. We cover that in the payment schedule when buying without a mortgage.
What does it cost to leave a developer agreement?
Withdrawal fee. The agreement may provide for a right of withdrawal against payment of a withdrawal fee (odstępne). The statement of withdrawal is then effective only if you submit it together with payment of that fee (art. 396 k.c.).
Contractual penalty. If the agreement provides for a penalty where the developer withdraws through your fault, its amount is in the deed (art. 35 ust. 1 pkt 14). A court may reduce a grossly excessive penalty (art. 484 § 2 k.c.).
Costs of the deed itself. You split the notary’s fee, the copies and the court fees for entries in the land and mortgage register (KW) with the developer equally (art. 40 ust. 2). Example for a flat at PLN 690,000 (own calculation, legal position as at October 2026):
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| Item | Basis | Amount |
|---|---|---|
| Maximum notary fee for a developer agreement | § 3 pkt 5 and § 6 pkt 15a of the notary fees regulation (Dz.U. 2024 poz. 1566) | PLN 1,765 net |
| Your half of the fee | art. 40 ust. 2 of the Developer Act | PLN 882.50 net, about PLN 1,085 with VAT |
| Copy of the deed | § 12 of the notary fees regulation | PLN 6 net per page |
| Entry of the claim in the KW | art. 43 pkt 3 of the Act on court costs in civil cases (Dz.U. 2025 poz. 1228) | PLN 150, of which your half is PLN 75 |
| Certifying the signature on a statement of withdrawal | § 13 pkt 1 lit. a of the notary fees regulation | at most 1/10 of the maximum rate in § 3, not more than PLN 300 net |
Any statement of withdrawal by the buyer from a developer agreement, including one based on a mortgage clause, is effective only if you submit it in writing with a notarially certified signature and include consent to the deletion of your claims from the KW (art. 45 ust. 1). The fee for deleting an entry is half the fee for the entry (art. 46 of the Act on court costs in civil cases).
See also: what to check in a multi-phase development before you buy.
If you are a foreigner: what to consider before signing
The deed will be in Polish. The developer agreement is made as a notarial deed (art. 40 ust. 1 of the Developer Act), and a notarial deed is drawn up in Polish. If you do not speak Polish, the notary or a sworn translator (tłumacz przysięgły) translates it (art. 2 § 3 and art. 87 § 1 pkt 1 of the Notaries Act). Ask for a translation of the draft agreement in advance, not on the day of signing: the mortgage clause, the deadlines and the contractual penalties are all in the draft.
Check the mortgage clause before you see the notary. The withdrawal clause should be in the draft you receive before the deed. So before the notary visit, make sure you understand every provision on withdrawal, refunds and contractual penalties, and if needed show the draft to a lawyer.
Keep the bank’s document in a form you can present. For the refund of the reservation fee and for the clause you need the bank’s refusal in writing or on a durable medium. Keep the bank’s letter and a translation of it if the decision came in a language other than that of the agreement.
FAQ
Do I get my reservation fee back if the bank refuses the mortgage?
Yes, if you have only reserved the flat and the bank refused because of a negative assessment of your creditworthiness (zdolność kredytowa): the developer must refund the reservation fee without delay (art. 34 ust. 1 pkt 1 of the Developer Act, Dz.U. 2026 poz. 880, legal position as at October 2026). The fee may not exceed 1% of the flat price in the information prospectus (art. 32 ust. 2). Keep the refusal in writing or on a durable medium.
Can I withdraw from a developer agreement if I do not get a mortgage?
Not under the Act alone. Among the 12 cases in art. 43 ust. 1 of the Developer Act (legal position as at October 2026), a mortgage refusal is not one of them. You can withdraw only if the agreement itself provides for it, either as a contractual right of withdrawal (art. 395 of the Civil Code, k.c.) or as a condition (art. 89 k.c.). Such a clause has to be negotiated before the notarial deed is signed.
How do I withdraw from a developer agreement that has a mortgage clause?
Submit your statement of withdrawal within the period set in the clause: a contractual right of withdrawal is reserved for a fixed period (art. 395 § 1 k.c., Dz.U. 2026 poz. 795). The statement must be in writing with a notarially certified signature and include consent to the deletion of your claims from the land and mortgage register (księga wieczysta), otherwise it is ineffective (art. 45 ust. 1 of the Developer Act). Legal position as at October 2026.
What happens if I miss an instalment to the developer?
The developer may withdraw from the agreement if you do not pay on time or in the right amount despite a written demand for payment within 30 days of its delivery. The exception is force majeure (art. 43 ust. 7, legal position as at October 2026). Any contractual penalties that apply are set out in the agreement (art. 35 ust. 1 pkt 14).
Can I transfer the developer agreement to someone else if I cannot get a mortgage?
Yes, if the statutory conditions are met. Assigning the claims under a developer agreement (cesja) is allowed where the agreement concerns one unit and you have not assigned claims under another developer agreement in the previous 3 years (art. 37a ust. 1 of the Developer Act, legal position as at October 2026). The restriction does not apply to a transfer to a person in tax group I or II under the inheritance and gift tax act (art. 37a ust. 2). The assignment is made as a notarial deed (art. 40 ust. 1). For the new buyer to take over the duty to pay the rest of the price, the developer must consent (art. 519 § 2 pkt 2 k.c.).
Choosing a flat among new developments in Warsaw and planning a mortgage? Write to us before your first visit to the sales office. We will register you with the developer and go there together. Before you reserve, we will go through the information prospectus and the draft agreement with you, including the provisions on withdrawal and contractual penalties. We serve clients in 7 languages. We do not charge you a fee for helping you buy a flat from a developer. Our remuneration on the primary market comes from agreements with developers. We are not a law firm, so it is worth showing the wording of the mortgage clause to a lawyer too.
Jawno · +48 692 649 839 · infojawno@gmail.com
This text is for information only and is not legal advice. Legal position as at October 2026.