Owing to the dynamic development of the market, there is growing demand for apartments dedicated to key personnel of international corporations. Landlords are also more and more interested in making rent agreements with foreigners. What should you be pay special attention to when a party of a tenancy agreement is an individual, rather than directly a corporation, company or firm?
First of all, it is worth mentioning that an agreement executed with a citizen of another state is not an agreement of a special type and it is governed by the same laws as agreements made with Polish citizens. It is of primary importance to identify a tenant properly. To do so, you usually need a passport or, sometimes, a Foreigner Polish Identity Card (PDTC), which confirms the identity of a foreigner during his/her stay in the Republic of Poland, without confirming the citizenship. This is of great importance if you will have to file a case to court. It is also important to determine the place of employment or a university, if your tenant is a student. Many foreigners decide to study at TriCity universities, the Gdańsk University of Medicine being the most popular among them. Young people come to study in the TriCity from Austria, the Saudi Arabia, Kazakhstan, India, Nigeria, Slovakia, Slovenia, Sweden, and even the US, to mention only some of the countries. Internet will be a very useful tool in identifying them as well.
How to choose the form of an agreement – ordinary or occasional tenancy?
In the event of an occasional (temporary) tenancy, the Landlord is secured with an enforcement clause, although according to my practice this is not always an ideal solution, because it is hard to identify a unit for a foreigner where he or she could live if evicted. What is certainly necessary is a written form in the case of an ordinary agreement. Today, bilingual versions of agreements in Polish and English are in common use. You should remember, however, that an agreement must contain relevant clauses that make the Polish version prevail. The agreement should also determine the purpose of renting the unit. Another important element is to indicate explicitly that the agreement is governed by Polish law and is subject to the jurisdiction of Polish courts. This will allow you to avoid potential cross-border disputes, if a foreigner leaves Poland and you are left, for example, with unpaid liabilities under the lease agreement. The question of governing law and jurisdiction has to be resolved, because the process of making claims otherwise is very difficult. Even if you are successful in conducting the procedure before the Polish court, the enforcement will be carried out in the location of the actual residence of the debtor or where his/her property is located. In addition, a deposit is usually collected from foreigners, amounting to rent for one or two months, even though the Act on Tenant Protection gives you an option to charge even 12-months’ rent as deposit, and for the occasional tenancy agreement 6-months’ rent. In view of the present practice, therefore, the effectiveness of an agreement will depend on the payment of an adequate deposit. It is also recommended to make the repayment of the deposit within 30-days of vacating the unit by a tenant, rather than of terminating the agreement. Another clause that should be included in the agreement with a tenant is the inadmissibility of setting-off amounts due to rent or service charges by a tenant, in order to avoid a situation where a tenant fails to pay the last rent with an off-set against the deposit, while the landlord will have no funds to cover damage to the rented flat, if any. Another recommendation is to execute an agreement for a definite term and to extend it with an amendment, in order to avoid a situation where you will have a so-called silent extension of the agreement. It happens often that a tenant requests for a permit to occupy a unit for a short period after the expiry of the agreement and pays for the extended term. However, please remember that pursuant to art. 674 of the Civil Code, if upon the expiry of a deadline set in the agreement or upon the termination, a tenant continues to use an object with the landlord’s consent, if in doubt this is construed as the extension of tenancy for an indefinite term. As a result, a landlord will have to terminate the agreement once again. A landlord is also often requested for registering a tenant, which is necessary to enable foreigners to fulfil a number of formal requirements, for example, to obtain a permit for temporary stay. According to Polish regulations, everyone who stays in Poland for more than 14 days is obliged to get a permit. If a foreigner stays in Poland for more than 3 months, he or she is given a PESEL number. Having such an identification makes the daily live in Poland much easier.
Termination clauses in a tenancy agreement and the legal status
An illegal clause that is often used in tenancy agreements by landlords is a one-month’s notice, if a tenant is in arrears with rent or other service charges. Such a clause is contrary to the Act on Tenant Protection and, therefore, is not allowed. Such a provision is not binding for a tenant and, even though it is included in the agreement, the landlord cannot terminate the agreement effectively in this manner. According to art. 11(2) of the Act on Tenant Protection, a landlord may terminate the agreement if the tenant is in arrears with rent or other charges for the use of the unit for minimum three complete payment periods, even if he or she has been warned in writing of the intention to terminate the legal relationship and setting an additional one-month deadline for the payment of both overdue and current due amounts. It is worth noting that the Act mentions three complete periods, rather than months, and a payment period may be, for example, a week.
Important not only in tenancy agreements…
It is important to enclose to the agreement a certificate that confirms the condition of the unit as well as its furnishings together with photographic documentation. The certificate includes the description of an apartment and readouts of meters as of the date of transferring the unit to the tenant and the description of equipment and furnishings in the unit.
The above comments concern only selected issues in tenancy agreements made with foreigners.
The content of this article is an expert opinion and does not constitute legal advice.
