The Apartment

Believe or not most lawyers do actually wish to help their clients. And many will willingly spend time – even before being formally engaged – taking through a proposed assignment even if this results in the assignment having to be declined. It is always hard turn away work but sometimes there is no choice: there may be a conflict of interest, the work may be outside the lawyer’s competence, or it may simply not be possible to do what the client asks. We faced a good example of this recently.

First, the legal background. Under Polish law if you wish to transfer the legal title to real estate the document transferring the real estate from the seller to the buyer must be in the form of a notary deed and signed in front of a public notary. As “any fule kno” there are no exceptions to this rule. It is, of course, possible to enter into any agreement in simple written form – and this is often the case of the preliminary agreement signed, for example, with a developer when buying a flat off plan – but the final agreement will always be in the form of a notary deed. Why does this matter? Because if the document is not in the form of a notary deed, the transfer will not be enforced by the court and the seller is under no legally enforceable obligation to transfer title. Of course, if title is not transferred the seller must return the purchase price to the buyer but this will be of little consolation where the buyer was relying on acquiring that particular real restate be it land or a flat – and expected to be able to enforce the transfer through the court.

Turning now to the recent case before us, the buyer had bought two adjoining flats. The preliminary agreement was in normal written form with the purchase price to be paid in instalments. In due course the final agreement for the first flat was signed in the firm of notary deed and title to the first flat was transferred to the buyer. The buyer then proceeded to join the two flats together to create a single, larger flat. You can guess what happened next: when the buyer sought to have legal title to the second flat transferred the seller asked for more money.

At this point and notwithstanding the sharp practice on the part of the seller (doubtless encouraged by the buyer having competed the adaptation works) the sensible approach – since the buyer clearly wished to keep the flat – would be for the buyer to have recognised the mistake and to have sought to negotiate an agreeable additional payment while resolving to be more careful and to do the job correctly next time. Needless to say the buyer chose instead to seek a remedy through the courts although it was clear that the court could not order specific performance, in this case delivery of legal title to the second flat, but only the return of the purchase price which is exactly what happened. The final and binding judgment of the court was that the purchase price be returned and the buyer vacate the flat.

Amid much wailing and gnashing of teeth the buyer then approached us expecting a remedy. We explained why nothing could be done but did offer to help negotiate a settlement which would allow the buyer to keep the flat. Of course, in the ten years since the original purchase agreement property prices have changed and armed with an up to date valuation the seller now required an additional payment of five times the payment originally sought. The buyer did not wish to pay this and was very put out when we explained that a final and binding judgment of a Polish court may only be set aside in exceptional circumstances; that in any case the judgment was wholly in conformity to the law; no, we did not think the judge had been bribed; and no, we did not wish to take the case to the European Court of Human Rights on the buyer’s behalf. As I wrote, sometimes there is nothing you can do.

The moral of this story is that lawyers are able and willing to help but, please involve us at the start of the project and not when it has already reached the point of no return.

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