Statutory warranty (rękojmia) on a secondary-market flat – what is it and when can you rely on it?

The statutory warranty (rękojmia) covering a flat protects the buyer against the consequences of physical and legal defects in the property they have bought. While this protection is widely known in the case of new properties, not everyone knows that it also applies to "second-hand" flats. What do you need to know about the statutory warranty and in what situations can you rely on it?

Statutory warranty on secondary-market property – how does it work?

The statutory warranty (rękojmia) is the seller's liability for physical or legal defects relating to the item or object sold. It does not apply to property alone. Under Art. 556 of the Civil Code, it covers any goods, regardless of their value, size or purpose.

The statutory warranty applies under Art. 5561 § 1 of the Civil Code if the goods:

• do not have the properties they should have given the purpose specified in the contract or arising from their intended use;
• are not suitable for the purpose of which the buyer informed the seller,
• do not have properties that the seller assured the buyer they had,
• were delivered to the buyer in an incomplete state.

The seller is therefore liable for physical defects in the goods that existed at the time they were handed over to the buyer or that resulted from a cause that already existed at that time. In the case of a property, this might be, for example, a leak in the plumbing that later caused water damage in the flat. It makes no difference whether the transaction concerns a flat from the primary or the secondary market.

The liability of the seller of a property lasts 5 years from the day it is handed over to the buyer. However, the expiry of this period does not exclude rights under the statutory warranty if the seller fraudulently concealed the defect. This provision applies if it can be proved that the seller was aware of the fault at the time of sale.

The statutory warranty for physical defects in a property – what does it cover?

If you are looking for a flat for sale, it is worth remembering in what situations the statutory warranty protects you. Hidden defects in properties are relatively common. They do not always result from the seller's ill will, but when it comes to claims, it makes no difference whether that person knew of their existence or not.

The statutory warranty on a secondary-market flat will help you protect your interests in the following cases, among others:

• if the seller assured you that the flat had undergone a full renovation with all the wiring and plumbing replaced, when in reality only some elements were replaced,
• if the floor area of the flat described in the contract was stated as covering residential space only, but in reality also includes a storage unit or a cellar,
• if the flat has technical defects, such as a faulty heating system, defective wiring or mouldy walls (which, for example, were painted over so the damage was not visible at the time of purchase),
• if the unit lacks elements that were the subject of the contract (for example, the fitted kitchen units have been removed).

In such situations you can make a claim against the seller to have the damage remedied (if possible) or for financial compensation.

If, on the other hand, it is you who is putting an apartment up for sale, avoid giving false or partly false information in the listing. In particular, it is not worth claiming that a full renovation has been carried out if in reality it covered only some elements of the property.

The statutory warranty for legal defects in a flat

The statutory warranty protects you not only when physical defects come to light, but also when legal ones do. The Civil Code distinguishes between these two matters.

A flat on the secondary market has legal defects when, among other things:

• it is the property of a third party (and not of the seller),
• it is encumbered with the rights of third parties (for example as a result of unresolved inheritance matters),
• there is a legal restriction on using or disposing of the property.

If the seller concealed such matters, the buyer also has the right to make claims against them.

It is worth stressing that the statutory warranty covering a flat on the secondary market is imposed by law. This means that no provisions in the contract affect whether it applies. Nor is it the same as a guarantee, which as a rule is voluntary.