Legal Defects in Polish Property — What They Are and How to Protect Yourself

This guide is general legal information, not legal advice. How the rules apply depends on your individual circumstances, and the matter should be assessed by a qualified Polish lawyer. Twoja Sprawa helps you organise the documents for that assessment.

You've bought a flat in Poland, picked up the keys — and then discover the property carries a hidden mortgage, a tenant's right of occupation, or an easement in favour of a third party. These are examples of legal defects (as opposed to physical defects, such as a leaking roof) — and under Polish law they are treated just as seriously. This article explains what legal defects are, gives real-world examples, and sets out how to protect yourself and what claims are available if you've fallen victim to a hidden defect.

What is a legal defect (Article 556¹ KC)

Article 556¹ of the Polish Civil Code (Kodeks cywilny, "KC") defines a legal defect as a situation where:

"If a third party has a right to the thing, or a share in the thing belongs to a third party, the thing has a legal defect."

In plain terms: if you buy a property and it turns out someone else holds a right over it (ownership, a mortgage, a right of use, and so on), that is a legal defect. The property isn't "fully yours" — it's effectively split between you and a third party.

Examples: - Hidden mortgage — a bank holds a charge over the property as security for the previous owner's old loan, - Tenant's right of occupation — an occupier has a legal right to the flat/rooms and cannot be evicted without a court order, - Easement (służebność) — the property is burdened with a right of way, access, or similar (e.g. in favour of a neighbour), - Lease right (dzierżawa) — a tenant farmer or lessee holds rights over the land, - Co-ownership — someone else turns out to be a co-owner, without your knowledge.

Examples of legal defects

Type of legal defect Example Effect on the buyer
Mortgage (hipoteka) Bank X holds a mortgage on the flat securing the previous owner's old loan The bank can enforce the debt by seizing the flat
Tenancy An occupier has a 5-year tenancy agreement; their right survives the sale You must keep the tenant on; you cannot evict them without a court process
Land easement A neighbour has a right of way across your plot Reduces the plot's value; you cannot block the access
Lease right A farmer holds a 10-year lease over the plot You cannot deal freely with the plot until the lease expires
Co-ownership An heir of the previous owner was never removed from the land and mortgage register They are a co-owner and entitled to half the value

Hidden mortgages — the most common legal defect

A mortgage (hipoteka) is a right in rem that lets a creditor (usually a bank) enforce against the property if the debtor fails to repay a loan.

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The problem: a mortgage should be registered in the land and mortgage register (księga wieczysta, "KW" — the Polish land registry, roughly equivalent to HM Land Registry's title register but with a public-faith presumption built into the entries). If the previous owner took out a loan, the bank should have registered its charge in the KW. But in practice: - Sometimes the bank simply "forgets" to deregister after the loan is repaid, - Sometimes the debtor never repaid, and the mortgage is still live, - Sometimes there are registration errors (wrong amount, wrong plot number).

If you bought a property without checking the KW, you could be blindsided by a mortgage. The bank can then demand repayment from you or seize the property through a forced sale (licytacja).

⚠️ Note: Always check Section III of the KW (encumbrances) before signing the purchase contract. This is standard practice — any Polish lawyer will tell you the same.

Public reliance on the land register — your protection

Polish law offers real protection to a buyer acting in good faith who has checked the land and mortgage register and found nothing untoward.

Article 2(3) of the Polish Act on Land and Mortgage Registers and Mortgages (ustawa o księgach wieczystych i hipotece) provides that:

"Entry in the land and mortgage register creates a presumption that the right or encumbrance recorded exists."

In other words: if the land registry court entered a mortgage, it is presumed to exist. If the KW shows no mortgage, the law presumes there isn't one — this is known as rękojmia wiary publicznej ksiąg wieczystych ("reliance on public faith of the land register").

However: if it later turns out the mortgage was in the KW but you missed it: - If it was visible in Section III, that's on you — you should have read more carefully, - If it was deleted from the register but still legally exists (a court error), you may have a claim against the bank (if it comes after you) or against the State Treasury for the registry's mistake.

Easements (służebność) — a burden on the land or house

An easement (służebność) is a right in rem that allows the owner of one property to use another (neighbouring) property. Examples:

An easement reduces the value of a property, because it limits what you can do with it. It can also be a trap if the KW simply shows an entry reading "easement (details unspecified)" — in which case you have to dig further to establish exactly what it covers.

⚠️ To be verified: Some easements amount to a legal defect (if they restrict use of the property), while others are ordinary encumbrances. The distinction is subtle and requires a lawyer's assessment.

Right of first refusal / pre-emption

The statutory right of first refusal (prawo pierwokupu, Article 596 KC) is a right held by a third party (e.g. a local council or a co-owner) to buy the property before you, if you come to sell it.

This is not itself a legal defect on purchase — but it can become a problem when you later come to sell. If you fail to notify the party entitled to the right of first refusal, the sale contract can be void, and the holder of the right can effectively step into your shoes for the price you agreed with your own buyer.

How to protect yourself against legal defects

1. Check the land and mortgage register (KW)

Always check the KW no more than a few days before signing the purchase contract. Review: - Section I — ownership (are you sure the seller is really the owner?), - Section II — restrictions (right of first refusal, lease rights), - Section III — encumbrances (mortgages, easements, rights of use).

If something looks wrong, raise it with the seller. They should clear any encumbrances before completion.

2. An up-to-date KW extract

Ask the land registry court for a current extract of the register (issued within minutes online via the Elektroniczne Księgi Wieczyste portal). This confirms the KW is up to date at the moment of the transaction.

3. Purchase contract — clauses that protect you

The contract should include: - A warranty from the seller that the property is being sold "free from encumbrances", - An obligation on the seller to remove all encumbrances before handover (e.g. the mortgage must be deregistered, any tenant must move out), - A clause that if an unknown encumbrance later emerges, the seller reimburses your costs or you have a right to rescind.

4. Register a caution / restriction pending completion

In some cases you can apply to the registry court for an entry that makes transfer of title conditional on all encumbrances first being cleared — the nearest UK equivalent being a restriction or caution against the title.

How to pursue your rights if you discover a legal defect

Stage 1: Notify the seller

Send a formal letter (Polish equivalent of recorded/registered post): "I have discovered the property is encumbered by a mortgage / easement / tenancy right. I require you to remove this encumbrance within 14 days."

Stage 2: What you can claim

You may be able to claim: - Removal of the encumbrance (the seller repays the mortgage or has the easement deregistered), - A reduction in the price, if the encumbrance cannot be removed but you decide to keep the property anyway, - Damages, if the legal defect caused you a loss (Article 471 KC).

Stage 3: Court proceedings

If the seller refuses to cooperate, you can bring a claim before a Polish civil court for: - Removal of the encumbrance at the seller's cost, - Damages.

Frequently asked questions

Is an undisclosed tenancy a legal defect? Yes — if an occupier has a legal right to the flat and you weren't told about it, that is a legal defect. The seller should have disclosed that the flat was tenanted.

What if the estate agent knew about the defect and said nothing? You may be able to bring a damages claim against the agent (estate agency). Under Polish law, an agent has a duty to disclose material information. If they failed to do so, they can be liable for the resulting loss.

How can I pursue this from the UK? Grant a power of attorney to a Polish lawyer. They can then deal with the land registry court (if an encumbrance needs to be removed) and the civil court (if you're bringing a claim).

Can I remove a mortgage myself? No. Only the bank can remove a mortgage (by filing an application with the registry court), or the court itself (in enforcement proceedings). The previous owner is obliged to arrange this before the sale.

What if the previous owner has died but the mortgage is still registered? This makes matters more complicated. You would need to pursue the heirs (if known), or ask the court to remove the mortgage on grounds of limitation, depending on when it was registered.

Free assessment of your matter

Have you discovered a legal defect in a Polish property you've bought? Not sure what your options are? Get in touch with Twoja Sprawa at twojasprawa.com. We'll review your situation free of charge and connect you with a Polish lawyer.

Disclaimer

Twoja Sprawa (twojasprawa.com) is a matching platform — not a law firm. This article is for general information only and does not constitute legal advice. Legal defects in Polish property are a complex area; every case needs to be assessed individually. We do not guarantee any particular outcome.

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