The Polish legislature has provided for two statutory remedies that allow for termination without notice:
pursuant to Article 664(2) of the Civil Code: if, at the time of handover to the tenant, the property had defects that prevent its use as stipulated in the contract, or if such defects arose subsequently, and the landlord, despite having been notified, has not remedied them within a reasonable time, or if the defects cannot be remedied, the tenant may terminate the tenancy without giving notice.
Lease agreement without a notice period
Termination of a lease agreement without a notice period on the grounds set out in this provision is most often possible at the initial stage of the tenancy. This is because it is then that the tenant has the best chance of noticing a physical or legal defect that prevents the use of the leased property. It is worth noting that the tenant is not entitled to terminate the tenancy agreement without notice if they were aware of the aforementioned defects at the time the agreement was concluded.
Defects detected by the tenant must actually prevent the use of the premises, and not merely restrict the agreed use; otherwise, the tenant will only be entitled to claim a reduction in rent for the duration of the defects.
The courts recognise as defects limiting the agreed use of the premises, other than those resulting from the information provided, energy consumption, a lack of water supply to the plumbing fixtures in the premises, or the inability to heat the flat sufficiently.
Defects in the leased property that arise during the performance of the contract are also classified as defects, provided that the obligation to repair the property rests with the landlord. It is essential to exclude the extension of the concept of ‘defect’ to any external circumstances that merely affect the leased property. Such external circumstances should be understood as factors that cannot be effectively countered by making appropriate modifications to the leased property.
When can a tenancy agreement be terminated?
If the defect can be remedied and the tenant wishes to terminate the agreement, they must first give notice, as they may only terminate the agreement if the landlord fails to remedy the defect within a reasonable time after receiving the notice. The form of the notice is unrestricted; it must only contain information about the defect, stating whether it prevents the use of the property as agreed in the contract or use consistent with the property’s characteristics and intended purpose. For evidential purposes, it is recommended that such a notice be issued in writing.
An example from case law where the use of the premises is rendered impossible is the cutting off of the electricity supply to the premises, but such an example could also include a gas explosion in the building, a fire or any other event that permanently prevents the use of the leased property.
Can a tenancy agreement be terminated?
The second option provided for by the Civil Code, which allows the tenant to terminate the tenancy agreement without notice, is Article 682, according to which: if the defects in the rented premises are such that they pose a threat to the health of the tenant or their household members, the tenant may terminate the tenancy without observing the notice period, even if they were aware of the defects at the time the agreement was concluded.
The health risk referred to in the article must be real and objective; in other words, it cannot be the tenant’s subjective belief that there is a possibility of health risks arising.
Under this provision, the tenant is not obliged to request the landlord to carry out the necessary repairs, regardless of whether the defect is removable or non-removable. The tenant may also terminate the tenancy in this manner even if they were aware of the defect at the time the agreement was concluded.
Case law cites dampness, mould, the emission of toxic substances by materials used in the construction of the building (in which the premises are located), the risk of a wall, ceiling or the entire building collapsing, and health-threatening impacts from neighbouring premises or properties – excessive noise, emission of allergens.
An interesting example of a defect posing a threat to the health of the tenant or their household members, which was the subject of a Supreme Court ruling, is the maintenance of an excessively low temperature in the premises, creating a real and objective threat to the health of the tenant’s employees.
If you have any doubts as to whether you can terminate a tenancy agreement, or if you are interested in other aspects of the property market, please contact HWW Hewelt Wojnowski Lindner i Wspólnicy.
HWW lawyers offer consultations in Warsaw and online.
Do not miss the next analysis
Key legal changes and their business impact, once a month to your inbox.
By subscribing you accept the privacy policy. Unsubscribe with one click.
