The developer’s liability for failure to meet deadlines is an important resolution of the Supreme Court
Untimely implementation of development investments is a common phenomenon. When deciding to buy real estate, the buyer is primarily interested in: price, location, area and the date when he will be able to move into the new house.
Therefore, developers face quite a challenge. On the one hand, they are aware that failure to build on time may generate dissatisfaction and claims from buyers, and on the other hand, presenting a too late deadline for handing over the keys in the contract discourages potential customers.
For this reason, the time margin for the implementation of the investment is usually small, and if it fails, developers use various measures to limit liability.
One way to limit liability for untimeliness is to stipulate an abnormally low contractual penalty in the development contract.
For example, the developer decides that the buyer is entitled to PLN 60 per day for the delay, but not more than a specific amount – e.g. 2% of the price. Now imagine that this 2% price is achieved after 100 days of delay, and the developer has been delayed for a total of 600 days. In such a case, the 500-day delay was completely unpunished, and what’s more, the buyer lost money during this time, because even these 2% were actually reduced by inflation.
Fortunately, such contract restrictions are quite easy to challenge. These are so-called “prohibited clauses” that have no legal effects. We treat them as if they did not exist and count the contractual penalty from the beginning to the end of the delay.
What if the contractual penalty, even calculated without limitation, is lower than the costs incurred by the buyer in connection with the delay? For example, he paid high rent, higher loan installments, or maybe he stored furniture.
Pursuant to the provisions of the Civil Code, if the contract stipulates a contractual penalty for an event (e.g. untimely delivery of the premises), compensation (reimbursement of costs incurred) cannot be claimed for the same event. The exception is a situation in which it is expressly written in the contract that the contractor may demand compensation exceeding the contractual penalty (Article 484, paragraph 1 of the Civil Code).
However, according to the latest resolution of the Supreme Court, these rules should not apply to consumers. At least not in every case. In the resolution of October 31, 2025, ref. no. no. III CZP 22/25 The Supreme Court stated that the consumer should be able to demand compensation from the developer in addition to the contractual penalty, even when it was not provided for in the contract:
“1. In case of doubt, a provision of a development contract stipulating a contractual penalty for the consumer for each day of delay in concluding an agreement on the transfer of the right to separate ownership of a residential premises, which does not provide for the consumer’s right to demand compensation exceeding the amount of the stipulated contractual penalty (Article 484(2), second sentence of the Civil Code), is considered an prohibited contractual provision.
2. The provision referred to in point 1 is prohibited, in particular if the contractual penalty is abnormally low.
In other words, if the development contract stipulates a simple contractual penalty, without the right to claim compensation exceeding this penalty, it is presumed that this is an abusive clause and the consumer may claim compensation.
This view is not completely new, but it has significant practical significance simply because it was expressed directly in the resolution of the Supreme Court.
The ease of invoking this resolution may help many consumers in disputes for whom contractual penalties do not compensate for the losses incurred. All the more so because, at least in the author’s experience, the contractual penalties stipulated by developers since the new Development Act (1) came into force are lower than before.
This is probably due to the fact that while the previous act simply required developers to stipulate contractual penalties, the new act specifies their minimum amount, equal to the interest reserved for the developer. Due to the fact that buyers are rarely late with payments, developers reserve low interest rates for themselves, which gives them the opportunity, in accordance with the regulations, to reserve low contractual penalties due to buyers.
Taking into account the above-mentioned resolution, such a practice will no longer protect the developer against further claims. Buyers should remember that in order to effectively claim compensation, they must appropriately secure evidence, in particular regarding the costs they incurred due to the developer’s untimeliness, which they would not have incurred if the construction had been completed on time.
Moreover, when claiming compensation, it is important whether the developer is responsible for the delay. This guilt is presumed, but the developer may prove the occurrence of “exculpatory” grounds, i.e. those that exclude his fault – such as force majeure or the fault of entities for which he is not responsible.
Author: Attorney Adam Rusiłowicz, Head of the department for servicing housing communities and development matters at the Kancelaria Radców Prawnych Ryszewski, Szubierajski sp. k.
(1) Act of May 20, 2021 on the protection of the rights of the purchaser of a residential premises or single-family house and the Developer Guarantee Fund (consolidated text: Journal of Laws of 2024, item 695, as amended).
