Pre-emption right of the property


Pre-emption right of the property

REal Knowledge - about the Polish real estate market #4

A number of risks may be identified during real estate due diligence, which may, at various levels, affect the planned transaction to varying degrees. One of the most important issues for a planned investment is the existence and preservation of pre-emption rights (contractual or statutory) regarding the real estate. This right results in the impossibility to transfer the ownership right to the buyer without prior resignation from the purchase by an entitled entity (usually public entity), which is the State Treasury or a relevant local government unit (most often a municipality). The failure to observe the statutory pre-emption right, as a rule, entails the invalidity of the transfer of the ownership right, whereas the failure to observe the contractual pre-emption right constitutes a ground for claiming damages.

In view of their importance, the most important statutory pre-emption rights concerning real estate are indicated below.


Pre-emption right of the agricultural property:

1. In the case of the sale of agricultural property, the pre-emption right shall be vested by law in its tenant if:

a) the tenancy agreement has been concluded in writing and has a definite date and has been performed for at least 3 years counting from that date; and
b) the said agricultural property forms part of the tenant's family agricultural holding.

2. Pursuant to the Act on Formation of the Agricultural System, an individual farmer has the pre-emption right to purchase agricultural property if, as a result of such purchase, his family agricultural holding is extended, however up to an area of no more than 300 ha. The purchased agricultural property must also be located in the municipality where the purchaser resides or in a municipality bordering on that municipality.

However, in a situation where an agricultural property purchased by an individual farmer does not extend his family agricultural holding or is located in a municipality where he does not reside (or in a municipality which does not border on that municipality), the National Agricultural Support Centre (KOWR) has the right of first refusal, even if the buyer is an individual farmer.

Accordingly, the subject to the pre-emption right are:

  • shares in a limited liability company;
  • shares in a joint-stock company;
  • shares in a simple joint-stock company.


Pre-emption right related to forest estates:

The State Treasury, represented by the State Forests, has by law the pre-emption right over land:

  • designated as forest in the land and buildings register;
  • designated for afforestation as specified in the local spatial development plan or in the decision on land development conditions;
  • land covered by:
    • (a) simplified forest management plan,
    • (b) decision of a district governor, specifying forest management tasks.


Rights resulting from the Act on Special Economic Zones

Under the Act, the pre-emption right (or the right of perpetual usufruct) is vested in the administrator of a Special Economic Zone over real property located within the zone.


Pre-emption right related to land under inland stagnant waters:

Pursuant to the Water Law, the State Treasury has the pre-emption right in the event of the sale of a property comprising land under inland standing waters. This pre-emption right is exercised by the district governor in consultation with the minister responsible for water management.

The municipality's right of pre-emption:

Pursuant to the provisions of the Real Estate Management Act, the municipality has the pre-emption right in the event of sale:

  • undeveloped property previously acquired by the seller from the State Treasury or local government units;
  • right of perpetual usufruct of undeveloped property, regardless of the form in which the right was acquired by the seller;
  • property and the right of perpetual usufruct of property located in the area designated in the local plan for public purposes or property for which a decision has been issued on the location of a public purpose investment;
  • property entered in the register of historic monuments or the right of perpetual usufruct of such property;
  • property located in the area of revitalisation, if a resolution of the municipal council so provides;
  • property located in the Special Revitalisation Zone.


Proceedings in the case of encumbrance of the pre-emption right:

First, a notarial deed shall be concluded in the form of a conditional sales agreement. This means that the agreement will come into effect on condition that the pre-emption right is not exercised by the entitled party. The information that a conditional agreement has been concluded is communicated to the relevant institution by the notary or by a party to the agreement. The entitled person then has 30 days to decide whether to exercise or withdraw from its right. If the pre-emption right is not exercised, the parties conclude a property transfer agreement, based on which the buyer becomes the new owner of the property. If the entitled person decides to exercise its pre-emptive right, it exercises that right on the conditions agreed upon by the parties to the conditional agreement. If the statutory pre-emption right is infringed, the sale contract will be absolutely null and void.

Subscribe "REal Knowledge Newsletter"

Subscribe e-mail notifications about REal Knowledge Newsletter issues.

Czy ta strona była pomocna?