Signing a preliminary agreement before a notary — is it worth it?
A preliminary agreement is a document in which the parties set the terms of the future, definitive sale agreement. It does not transfer ownership of the property; it obliges both parties to close the transaction on the agreed terms — a specific person is to buy a specific property at an agreed price. The document should include, among other things, information about the advance or earnest-money deposit paid, the price, and the expected completion date. Both parties thus gain legal protection and clearly defined rules of cooperation.
Must a preliminary agreement be concluded before a notary?
The law does not require a preliminary agreement to be drawn up at a notary's office. It can be made in writing, orally, or as a notarial deed — each form is valid. They differ, however, in their legal effects.
If one party starts backing out of earlier arrangements, a document executed as a notarial deed provides far greater protection. Only this form makes it possible to compel the conclusion of the promised agreement, even in court. An ordinary written form gives only the possibility of claiming damages — and only up to the costs incurred in preparing for the transaction.
A notarial deed therefore works as a stronger commitment and enforces the agreed terms far more effectively.
A preliminary agreement before a notary — effects and costs
The key difference between ordinary written form and a notarial deed lies in the legal effects. The former only allows financial compensation, while the latter also allows you to demand the conclusion of the actual sale agreement.
It is also worth remembering that a notarial deed can include an application to enter, in the land and mortgage register, a claim for the transfer of ownership. Thanks to that, even if the property is sold to someone else, the interested party can still pursue their rights against the new owner. This is an important safeguard for the buyer.
This form does come with costs. The notarial fee depends on the property's value, with its maximum set by the relevant regulation of the Minister of Justice. Add 23% VAT, the cost of deed copies, and a possible land-register application fee (PLN 246 gross).
Beyond drawing up the document, the notary is obliged to make sure both parties understand the agreement and its consequences, and to provide additional explanations where needed.
Nevertheless, we do not recommend this form to our clients in every case. We discuss its potential downsides during free consultations.