Apartment lease agreement: what it must contain

Legal basis and form of the agreement

Apartment rental is governed by the Civil Code (Kodeks cywilny, art. 659–692) and the Act of 21 June 2001 on the protection of tenants' rights, the municipal housing stock and amending the Civil Code (ustawa o ochronie praw lokatorów). The Act protects the tenant: many of its provisions cannot be excluded by contract, and clauses contrary to it are void.

A lease for a term longer than one year should be in writing. If the parties do not observe this form, the agreement is deemed concluded for an indefinite term. Occasional and institutional leases require written form on pain of nullity.

What a lease agreement must contain

The minimum is identification of the parties, the premises and the rent. In practice, it is worth regulating everything the parties might later dispute:

• details of the landlord and all tenants (with several tenants: their joint and several liability),
• the address and description of the premises, optionally the land and mortgage register number, and a list of furnishings,
• the term of the agreement: fixed (with an end date) or indefinite,
• the amount of rent, and the payment date and method,
• who pays the service charge (czynsz administracyjny) and each utility,
• the amount of the deposit and the rules for its return,
• termination rules, and for a fixed-term agreement the specific reasons for termination,
• rules on pets, smoking, subletting and the number of occupants,
• the division of repairs between the parties,
• a handover protocol (protokół zdawczo-odbiorczy) with the condition of the premises and meter readings as an attachment.

Ordinary, occasional and institutional lease

An ordinary lease is the basic form. The tenant enjoys the full protection of the Tenants' Rights Protection Act (ustawa o ochronie praw lokatorów). If the tenant does not leave after the agreement ends, the owner must bring an eviction lawsuit, and the court examines, among other things, the right to social housing. Deposit of up to 12 times the rent.

An occasional lease (najem okazjonalny, art. 19a–19e of the Act) can be concluded by an owner who is a private individual and does not run a business renting out premises. The agreement is for a fixed term of at most 10 years, and the tenant makes a statement before a notary submitting to enforcement and designates a substitute residence. This allows the owner to recover the apartment faster once the lease ends. Deposit of up to 6 times the rent, and the agreement must be notified to the tax office (urząd skarbowy) within 14 days.

An institutional lease (najem instytucjonalny, art. 19f–19j of the Act) is intended for entrepreneurs renting out premises as part of their business. It also requires the tenant's notarial statement submitting to enforcement, but without designating a substitute residence. Deposit of up to 6 times the rent, term of up to 10 years. The Flats.pl generator does not prepare this agreement.

Deposit: how much you can take

The deposit secures the owner's claims arising from the lease, e.g. unpaid rent or the cost of repairing damage. In an ordinary lease it cannot exceed 12 times the monthly rent, in an occasional and institutional lease 6 times.

The deposit is returned within a month of the premises being vacated, after deducting the landlord's claims. Ordinary wear resulting from proper use does not justify deductions. That is why a protocol recording the condition of the premises at handover and return is so important.

In practice, the most common deposit equals 1–3 months' rent.

Notice periods and grounds for termination

Indefinite-term agreement: the tenant may terminate it at any time. Unless the agreement provides otherwise, the statutory notice period is 3 months, ending at the end of a calendar month (art. 688 of the Civil Code (Kodeks cywilny)). The owner may terminate the agreement only on the grounds listed in art. 11 of the Tenants' Rights Protection Act (ustawa o ochronie praw lokatorów), in writing on pain of nullity and stating the reason. The most common grounds are: arrears in rent for at least 3 full payment periods (after a written warning and an additional one-month deadline), using the premises contrary to the agreement despite a reprimand, and subletting without consent. In those cases the notice period is at least one month, ending at the end of a month. Some other grounds require much longer notice periods.

Fixed-term agreement: it can be terminated only in the cases specified in the agreement (art. 673 § 3 of the Civil Code (Kodeks cywilny)). If the agreement lists no reasons, it runs until the end of the term. The parties can always end it by mutual agreement. Regardless of the agreement, the tenant may terminate the lease without observing notice periods if defects in the premises endanger health (art. 682 of the Civil Code (Kodeks cywilny)).

A practical tip for owners: in a fixed-term agreement, list termination reasons that correspond to art. 11 of the Act. The permitted grounds for termination by the landlord are listed in art. 11 paras. 2–5 of the Act; a reason outside that list does not support an effective termination.

Rental tax and the tax office

Since 2023, income from private rental, that is outside a business, is taxed solely with the flat rate on recorded revenue (ryczałt od przychodów ewidencjonowanych). The rate is 8.5% of income up to 100,000 PLN per year and 12.5% on the excess over that amount. Costs, e.g. renovation or depreciation, are not deductible. Spouses each have a 100,000 PLN limit and may also file a declaration that one of them settles the whole amount.

Income includes the rent and also the fees the tenant pays the owner for the premises. The deposit is not income as long as the owner does not keep it. The flat-rate tax is paid monthly or quarterly, by the 20th day of the following month, and the PIT-28 return for a given year is filed by 30 April of the following year.

An ordinary lease agreement does not have to be registered anywhere. The exception is an occasional lease: the conclusion of the agreement must be notified to the head of the tax office (naczelnik urzędu skarbowego) within 14 days of the start of the lease, otherwise it will not be an occasional lease. Rental as part of a business is taxed differently; this guide does not cover it.

Before signing

Proven practices that save you disputes:

• the tenant can check in the land and mortgage register (ekw.ms.gov.pl) whether the landlord is the owner,
• draw up a handover protocol (protokół zdawczo-odbiorczy) with photos, meter readings and the number of keys,
• agree in writing who pays for each utility and when,
• with several tenants, put all of them in the agreement,
• keep confirmations of rent and deposit transfers.