Poland: How to make the tenant leave the premises? A way to secure the landlord’s rights in a lease
If a non-paying tenant refuses to voluntarily leave the premises, the landlord may perform a forced eviction from the premises if the tenant previously submitted himself to enforcement in a notarial deed and the landlord acquired an enforcement title.
In other cases, filing a claim to vacate the premises and seeking a court eviction judgment in order to carry out an eviction would be necessary. This action, however, has to be preceded by a specific procedure.
[Step 1 - Termination] First of all, it is crucial to lawfully terminate the lease. In order to do this, the landlord has to determine the lawful ways of termination of the concluded agreement in order that the termination notice is duly served on the tenant. Termination must be done correctly, i.e. it should be made in a correct form (e.g. in writing), in accordance with the notice periods, it should state the reason for termination and it should be served on the right person, otherwise it will be ineffective.
Further, the reason for termination cannot be arbitrary. Under the Polish Civil Code, when the tenant fails to pay the rent for a longer period than two full payment periods, the landlord is entitled to terminate the lease (regardless of the period of lease) without notice. The landlord who intends to terminate the lease without notice should forewarn the tenant in writing, granting him an additional period of one month to pay the outstanding rent. A termination notice is considered to have been done successfully at the moment it is served on the tenant in a manner in which the tenant becomes aware of its content.
In other cases, the lease may be terminated observing contractual notice periods (when the lease period is not fixed), and in their absence, observing statutory notice periods.
[Step 2 - Vacation of the premises] Upon the termination of the lease, the landlord has to call on the former tenant to vacate the premises. If the tenant refuses to do so, the landlord can either acquire an enforcement clause on the notarial deed in which the tenant submitted to enforcement or, in its absence, file a claim against the tenant to vacate the premises.
[Step 3 - Eviction] After receiving an enforcement clause on the notarial deed or a court eviction judgment with an enforcement clause, the landlord is entitled to ask the bailiff to evict the tenant from the premises. The bailiff can use police assistance if the tenant does not follow his orders.
[Securing landlord’s rights] The best way for the landlord to avoid unpleasant situations is to prepare a good lease. Contrary to leases for residential premises, leases for commercial premises allow the parties to freely regulate their rights and obligations and to prepare an agreement securing the landlord against the tenant who does not pay the rent regularly or at all or refuses to leave the premises upon expiry or termination of the lease. The most common legal institutions that could be helpful in avoiding or remedying such situations are described below.
[Security deposit] A security deposit is one of the most popular ways to secure claims that stem from or arise in connection with the lease. With the prior tenant’s consent in the lease for deduction, the landlord may deduct his claims against the tenant (e.g. outstanding rent payments or liquidated damages). Should there be no claims against the tenant, the security deposit is reimbursed to the tenant in full.
[Blank promissory note] A payment of rent and other lease costs as well as liquidated damages may be secured by a blank promissory note. The tenant can be obliged to issue such a note in one of the provisions of the lease; the note can be attached as an annex to the lease. A properly issued blank promissory note enables a legal action to be brought in special court proceedings (writ of payment), which allows for a very efficient enforcement of the landlord’s receivables.
[Liquidated damages] The parties may conclude a liquidated damages clause in a lease. In case of failure to perform the obligations of the tenant, the landlord would be entitled to claim the agreed amounts (even without suffering any damage). Such a provision is permitted only in relation to non-monetary obligations. Thus, it cannot be established for delay in payment, e.g. rent payment.
[Suretyship] A third party guarantees to the creditor (landlord) that it will pay what is due to the landlord in the event of default by the tenant. The suretyship should be in writing as otherwise it is invalid. It is important that the suretyship be given for a future debt up to an amount specified in advance.
[Submission to enforcement] It is a common custom in commercial leases that a debtor (tenant) voluntarily submits in a notarial deed to enforcement, e.g. to eviction from the premises (Art. 777 of the Polish Code of Civil Proceedings). When having such a notarial deed, it is not necessary to seek a separate court eviction judgment; the landlord need only acquire an enforcement clause. Then the landlord is entitled to ask the bailiff to evict the tenant from the premises. The bailiff can use police assistance if the tenant does not follow his orders.