Mortgage Refused After Reserving a Flat in Poland: Getting Your Reservation Fee Back

You reserved a flat with a Polish developer and paid a reservation fee — but the bank, despite an earlier positive assessment, then refused to lend you the money? This is one of the more common disputes on the primary property market in Poland: the buyer loses the flat they had their eye on, and the developer is not always willing to hand the money back without an argument. Whether you get your fee back largely depends on how the reservation agreement (umowa rezerwacyjna) was drafted, and whether it included a conditional clause covering a mortgage refusal.

This guide is general legal information, not legal advice. How the rules apply depends on the specific agreement, the evidence, and the circumstances — including whether the matter is consumer, civil, or commercial. If you need advice or representation, the matter should be assessed by a qualified Polish lawyer or another relevant specialist. Twoja Sprawa helps you organise the documents for that assessment.

Key points

The reservation agreement is a separate contract from the developer agreement (umowa deweloperska) or the preliminary agreement — its actual wording, not its name, determines what happens to the fee if the mortgage is refused.
The distinction between an earnest-money deposit (zadatek) and an advance payment (zaliczka) matters a great deal (Article 394 of the Polish Civil Code) — the two are settled very differently when the deal falls through for reasons beyond the buyer's control.
A conditional clause (making the refund of the fee dependent on obtaining a mortgage) should specify things like the deadline for submitting the loan application, how many banks the buyer must apply to, and how the refusal must be evidenced.
The Developer Act (ustawa deweloperska) governs some aspects of reservation agreements and sets out situations in which the fee must be refunded in full.
The absence of a clear clause in the agreement doesn't automatically mean you lose the money — the whole contract has to be analysed, along with how the payment should be classified.
Consumer status matters — a buyer purchasing a flat for their own housing needs is in a different position from a business buying a unit as part of its commercial activity.

What a reservation agreement is, and why its wording decides everything

A reservation agreement (umowa rezerwacyjna) is a contract usually signed at an early stage — before the developer agreement or the preliminary agreement is signed in the form of a notarial deed (akt notarialny, executed before a Polish civil-law notary, notariusz, which is not the same role as a UK notary public). Under it, the developer agrees to take a specific unit off the market for a set period, and the buyer pays a reservation fee.

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What happens to that fee if the deal ultimately falls through because the bank refused a mortgage depends almost entirely on the wording of that particular agreement — its commercial label ("reservation fee", "reservation deposit") does not by itself determine the legal consequences. Before signing such an agreement, it is worth checking carefully whether it contains a conditional clause addressing what happens if the bank refuses financing despite the buyer's genuine efforts.

Earnest-money deposit or advance payment — what the reservation fee actually is

How the payment is classified has a direct bearing on whether the money comes back in full, in part, or not at all. The starting point is Article 394 of the Polish Civil Code, which governs the earnest-money deposit (zadatek):

if the payment was labelled and treated as a zadatek, and it is the party that received it (the developer) who fails to complete the transaction, the buyer can demand twice the amount paid back; if, on the other hand, the buyer walks away of their own accord, the zadatek is typically forfeited,
if the payment is an advance payment (zaliczka), it is refundable in full when the transaction does not go ahead — regardless of whose "fault" it was,
whether a given payment counts as a zadatek or a zaliczka is decided by the wording of the agreement, and in the absence of a clear provision, Polish courts tend to lean towards treating it as a zaliczka.

A mortgage refusal by the bank is an event beyond the buyer's control — which is an argument for not treating it as a buyer-fault withdrawal. The final assessment, though, still depends on the wording of the particular agreement.

Conditional clause: mortgage refusal as grounds for a refund

A well-drafted reservation agreement should include a conditional clause that expressly addresses mortgage risk. It's worth checking whether the agreement specifies:

the deadline by which the buyer must submit a mortgage application and present the decision (or lack of one) to the developer,
whether one refusal from a single bank is enough, or whether the agreement requires evidence of applications to several lenders,
what form the refusal must take (a letter from the bank, a formal negative decision, a creditworthiness simulation showing the loan would be declined),
whether the refund covers the full amount, or whether the agreement allows the developer to deduct certain costs.

The absence of such a clause in an agreement you've already signed doesn't close the door on recovering the money, but it does make the case harder — you then have to fall back on the general rules on the zadatek/zaliczka distinction, and possibly on the Developer Act.

What the Developer Act says about reservation agreements

The Act of 20 May 2021 on the Protection of Rights of Buyers of a Residential Unit or Single-Family House and on the Deposit Guarantee Fund for Developers (ustawa o ochronie praw nabywcy lokalu mieszkalnego lub domu jednorodzinnego oraz o Deweloperskim Funduszu Gwarancyjnym, Journal of Laws 2021, item 1177; text available at isap.sejm.gov.pl) covers some aspects of reservation agreements on the primary property market. It sets out situations in which a reservation fee must be refunded in full — but the exact list of those grounds (including whether, and on what terms, it covers a mortgage refusal following an earlier positive creditworthiness assessment) needs to be confirmed with a lawyer against the current wording of the Act.

If the reservation agreement refers to, or reproduces, these provisions, it is worth comparing its wording against the current text of the Act — any discrepancy could be an argument in a dispute with the developer.

What to do if the developer refuses to refund the reservation fee

Go through the reservation agreement carefully — how the payment is labelled, whether there's a conditional clause, and what the deadlines and evidentiary requirements are.
Gather the documentation from the bank — the written refusal decision, correspondence, and, if available, confirmation of the earlier positive creditworthiness assessment.
Send the developer a written demand for the refund, citing the specific provisions of the agreement (or, if there are none, the nature of the payment as a zaliczka).
Check whether your situation falls within the Developer Act's grounds for a reservation-fee refund.
If the developer still refuses after the demand, consider your next steps — mediation or a civil claim — after taking advice from a lawyer who can assess the strength of your position based on the specific agreement and correspondence.

Does consumer status matter?

A person buying a flat for their own housing needs is normally acting as a consumer — which matters for assessing whether certain terms of the reservation agreement (for example, total forfeiture of the fee regardless of the reason) amount to an unfair contract term. Where the unit is bought as part of a business activity, the position is different — the wording of the agreement generally governs, without the extra layer of consumer protection.

Frequently asked questions

Will I always get my reservation fee back if the bank refuses the mortgage? There's no automatic rule — it all depends on the wording of the specific agreement, whether the payment was labelled a zadatek or a zaliczka, and whether the agreement contains a conditional clause covering mortgage refusal.

Is one refusal from a bank enough to claim a refund? That depends on the agreement's terms — some agreements require evidence of refusal from a specific number of lenders, or require the application to be submitted within a set deadline. It's worth checking this before you sign the reservation agreement.

What if the agreement says nothing about mortgage refusal at all? Then the case is harder, and requires working out whether the payment should be treated as a zadatek or a zaliczka, and whether the Developer Act applies. This kind of situation usually needs a lawyer's assessment based on the full documentation.

Can I negotiate a conditional clause before signing the reservation agreement? Yes — that's the best moment to protect your position. It's worth asking for a clear deadline, a defined form of evidence for the refusal, and a full refund of the fee in the event of a negative bank decision to be written into the agreement.

Need help with this?

If a developer is refusing to refund your reservation fee after a mortgage refusal, it's worth first putting together the reservation agreement, your correspondence with the bank, and any letters from the developer, before deciding on next steps. Tell us about your situation (in Polish) — we can help you review the documents and prepare a formal demand letter. Submitting the form does not create any agreement.