Prohibited clauses in developer agreements

Many of the agreements we draw up at various moments in life are written in language far removed from the simple, clear messages we use every day. In a thicket of tangled provisions it is very easy to overlook a key element, which is why it is so important to read carefully everything we sign. There are, however, prohibited clauses in agreements, that is, ones which have no legal force even after signing. How can they be recognised?

• What is a prohibited clause?
• 300 prohibited clauses
• Have doubts? Get help!

What is a prohibited clause?

The regulations are clear on this matter… while at the same time explaining nothing. According to the letter of the law, a consumer is not bound by provisions that have not been individually negotiated. Of course, this alone does not disqualify a clause – otherwise many agreements concluded between companies and their customers would be void from the outset. Most of them are based on a certain template, which the person signing the agreement may or may not accept.

A clause becomes prohibited when such provisions, not individually negotiated, are contrary to good practice and grossly infringe the consumer's interests. This is usually where we lose our footing – because what do these words really mean?

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300 prohibited clauses

Help comes here from the Office of Competition and Consumer Protection (UOKiK). On its website it has published a register of prohibited clauses, the number of which now exceeds 7100 (as at 31 August 2018)! In this extremely numerous group, more than three hundred clauses can (or could) be found in developer agreements.

Broadly speaking, the regulations are meant to eliminate unfair clauses, that is, for example, ones that put one of the parties in a more favourable position. Examples of prohibited provisions:

• One of the parties may terminate the agreement without giving a reason
• Penalties are provided for one of the parties
• Automatic extension of the agreement
• The possibility of changing the terms of the agreement without the consumer being able to withdraw from the agreement
• Taking over the flat on your own (without the investor's participation)

The list goes on. The universal and unchanging rule should remain the one that requires each party to read the entire content of the agreement carefully and thoroughly. And although it sounds like a hackneyed phrase, it is best not to sign an agreement on the spot, under the watchful eye of the developer's representative. It is much safer to take the document home and familiarise yourself calmly with all the provisions at your leisure.

To increase our chances of concluding a developer agreement that satisfies us, it is worth using the UOKiK register, in which we can easily search for clauses that raise doubts:

CHECK THE REGISTER OF PROHIBITED CLAUSES!

Have doubts? Get help!

The several hundred possible forms of a prohibited clause and the complexity of the text of the agreement can effectively discourage us from analysing a developer agreement carefully, or even make it impossible. In such a situation we can seek help, ideally before signing the document.

What can we do?

• Contact the consumer ombudsman
• Approach the developer and demand a change to the terms of the agreement
• Notify UOKiK
• File a claim with the Court of Competition and Consumer Protection

If, however, the agreement has already been drawn up, we simply do not have to comply with prohibited clauses – this is permitted by Art. 3851 §1 of the Civil Code. If the developer decides to bring a claim for that reason, we should try to have it dismissed. To get ahead of a dishonest developer, we can also sue it first – if the clauses do indeed turn out to be prohibited and we win the case, the company will have to pay a financial penalty.

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