Developer or Estate Agent — Who's Liable for Defects in a Polish New-Build?

You bought a new flat from a developer in Poland, and an estate agent helped you with negotiations and paperwork. Shortly afterwards, defects turn up: cracks in the walls, faulty wiring, damp. Who is responsible — the developer or the agent? And who should you go after for a repair?

Short answer: mainly the developer, but the agent can be liable in certain situations. Below we set out when each applies.

The developer carries the main liability (Developer Protection Act 2021)

The Act of 16 September 2021 on the protection of buyers of a residential unit or house (the "Developer Protection Act", ustawa deweloperska) sets out in detail the developer's liability for the quality of the property.

Statutory warranty (rękojmia) — what it is

The rękojmia — a statutory warranty for defects built into the Polish Civil Code, not the same as a UK manufacturer's guarantee — gives the buyer the right to demand:

1. Repair of defects — the developer must fix defects at its own cost, within a set deadline.
2. A price reduction — if the defects are serious, the buyer can demand the price be lowered.
3. Rescission of the sale — in exceptional cases (defects that cannot be repaired).

How long the warranty runs

• Building/product guarantee period — usually 24 months from the date of entry in the księga wieczysta (the land and mortgage register, Poland's central property register) or from handover of the flat, whichever is earlier.
• Statutory warranty period under the Civil Code — Articles 556–558 KC: 2 years from the sale (this applies only where the Developer Protection Act provisions don't take precedence).

In practice: if you bought a flat from a developer in July 2024, you have warranty rights at least until July 2026 (2 years from purchase).

What the warranty covers

The developer is liable for defects in:

• Structure and finishing (cracks, subsidence).
• Installations (gas, water, electrics, heating).
• Insulation (thermal, acoustic).
• The technical condition matching what was described in the contract.

How to pursue a warranty claim

1. Notify the developer — send a registered letter setting out the defects, with dates and a description.
2. Show the defects — invite the developer to an inspection (ideally with both sides present and a written record).
3. Demand a repair — set a deadline for the fix (typically 14–30 days, depending on how serious the defect is).
4. If the developer refuses — you can bring a claim to compel a repair, obtain a price reduction, or rescind the sale.

The estate agent's role and liability in a developer sale

An estate agent involved in a developer sale usually has a limited role:

• Helping with the process — translating documents (if the buyer is based abroad), explaining the terms of the contract.
• Negotiating terms — sometimes pushing the developer for a discount or contract amendments.
• Administrative support — collecting documents, liaising with the notariusz (a civil-law notary who authenticates Polish property transactions — not the same role as a UK notary public).

When the estate agent is liable for defects

The agent is liable if:

1. They knew about the defect — e.g. if, before the contract was signed, the agent knew this developer's previous building had structural problems and didn't disclose it.
2. They gave false information — e.g. if the agent said "everything's fine" when problems (cracks, damp) were already visible.
3. They neglected due diligence — e.g. if the agent was supposed to check the condition of the property and failed to spot obvious defects.
4. They failed to flag known risks — e.g. if they knew the developer had a reputation for poor build quality and said nothing.

When the estate agent is NOT liable

The agent is not liable for:

1. Hidden defects — if a defect is genuinely concealed (e.g. poor-quality concrete under the flooring), the agent normally has no way of knowing about it.
2. Design or structural defects — liability sits with the architect or structural engineer (via the developer), not the agent.
3. Normal wear from settling — if a new building "settles" (hairline cracks as it beds in), that's normal, and the agent isn't liable for the laws of physics.
4. Damage caused by the buyer — e.g. if a defect results from misuse (such as a flood caused by the buyer), the agent is not liable.

In practice — how liability is split across different claims

Scenario 1: Cracks in the walls (6 months after purchase)

• Liable party: the developer (this is a defect amounting to non-conformity with the contract).
• Agent's role: if the agent viewed the flat before signing and the cracks were already visible, they should have flagged them. Negligence here could give rise to a claim under Article 471 KC (breach of a duty to inform).

Scenario 2: Damp in the basement (discovered a year after purchase)

• Liable party: the developer (a defect in the insulation).
• Agent's role: usually the agent isn't at fault — the damp may have appeared after purchase (e.g. if the buyer neglected ventilation). But if it was already known that the building had a damp problem, the agent should have warned you.

Scenario 3: Electrics not working (found at handover)

• Liable party: the developer (a defect in the installation).
• Agent's role: the agent isn't expected to be a technical expert, but if they were present at the viewing and saw signs of a problem, they should have reported it.

Strategy — who to pursue first

Step 1: Notify the developer

Send a registered letter to the developer describing the defects, demanding a repair, and setting a deadline (typically 14–30 days). Keep proof of posting and delivery.

Step 2: If the developer refuses or can't be reached

• Bring a claim to compel a repair (Article 556 KC or the Developer Protection Act).
• If the developer becomes insolvent or goes bust, you may be able to pursue the estate agent (if they were negligent) or claim against the agent's professional indemnity (OC — third-party liability) insurance.

Step 3: The estate agent's role (where relevant)

• If the agent knew about the defects and didn't disclose them, you can bring a separate claim against them (Article 471 KC or Article 415 KC).
• A claim against the agent is normally a secondary route — pursued once your options against the developer have been exhausted.

Keeping evidence against both the agent and the developer

1. Dated photographs — document the defects with photos (date, time).
2. Independent inspection reports — commission an independent surveyor's report confirming the defects.
3. Correspondence — keep every email exchanged with the agent and the developer.
4. Inspection records — if the agent or developer attended a viewing, keep a note with the date and who was present.
5. Repair invoices — document what you've spent fixing the defects (needed if you claim compensation).
6. The sale contract — keep the original contract with all attachments (specifications, plans).

Frequently asked questions (FAQ)

Is the estate agent a party to the sale contract? No — the contract is between you and the developer. The agent is a third party supporting the process. They're liable for their own acts (a failure to inform, for example), but not for the sale contract itself.

How do I keep evidence against both the agent and the developer at the same time? Always document events (dates, people involved, what happened) in your own notes as you go. Take photos, keep invoices, save emails. If a dispute later arises, you'll have the paper trail ready.

What if the developer has gone bust and the agent has professional indemnity insurance? You may be able to claim compensation from the agent (if they were negligent) through their OC insurance. But this is hard to win — you'd need to show the agent knew about the defects and failed to disclose them.

How long can I wait for a repair from the developer? The warranty period typically runs for 24 months from handover of the flat. After that, the right generally lapses — unless there's been an attempt to circumvent the Developer Protection Act provisions.

Can I sue the agent for recommending a developer with a poor reputation? In theory, yes, but it's difficult to prove. You'd need to show the agent knew about the developer's poor reputation, failed to disclose it, and that you suffered a loss as a result of that failure.