Permission for the acquisition of real estate in Poland by foreigners

Buying a property is always quite a complex process, often requiring an adequate audit, raising funds, identifying tax obligations and participating in long-lasting negotiations. The process is different in case of acquisition of commercial and residential properties. In addition, if real estate in Poland is acquired by foreigners, in the first instance, the obligation to obtain the relevant permit needs to be examined.

A foreigner within the meaning of the Act on the Acquisition of Real Estate by Foreigners is:

1. 1. a natural person who does not hold Polish citizenship;
   2. a legal entity established abroad;
   3. an unincorporated company of persons listed in subparagraphs (1) or (2), established abroad, created in accordance with the legislation of foreign countries;
   4. a legal person and an unincorporated commercial company established in the territory of the Republic of Poland, controlled directly or indirectly by persons or companies listed in subparagraphs (1), (2) and (3).

In the aforementioned case, a controlled commercial company is understood as a company where foreigners directly or indirectly hold more than 50% of the voting rights at the shareholders’ meeting or the general meeting.

As a rule, the acquisition of real estate in Poland requires a permit, issued by way of an administrative decision by the Minister of the Interior and Administration. It is obtained by fulfilling certain conditions when purchasing a real estate. These include, for example:

1. 1. absence of threat to internal security or to the health of members of the public;
   2. confirmation of the foreigner’s links with Poland.

The regulations explicitly indicate that a foreigner’s links with Poland can be confirmed in the case of an entrepreneur, in particular through performing economic or agricultural activities in Poland. The Act also prescribes the acquisition of real estate by an entrepreneur in a size adequate to the real needs of the business pursued.

Notwithstanding the foregoing requirements, the Act provides for very important exceptions, introduced in connection with Poland’s accession to the European Union. One of the most important exceptions is a possibility for foreign nationals or entrepreneurs from countries of the European Economic Area and Switzerland to acquire real estate without a permit.

Introduction of such an exception means that the authorisation obligation is actually addressed to non-EEA and Swiss economic operators. In the investment practice, foreigners other than those from the EEA and Switzerland, often decide to set up a special purpose vehicle (the so-called SPV) with its registered office in Poland in order to avoid the requirement to obtain a permit. Such a company is treated as a Polish entrepreneur, exempt from the obligation to obtain a permit – regardless of the nationality of the owners or the proportion of their shares.

The establishment of a company in Poland obviously requires the fulfilment of certain formal requirements, such as registration with the National Court Register (KRS), obtaining a NIP and REGON number, as well as keeping proper accounts and identifying the beneficial owners. It is worth bearing in mind that the use of such a structure may involve additional costs and the need to comply additionally with the Polish regulations concerning the principles of conducting business activity.

Author: Michał Sobolewski