The amendment to the developer’s rationing has standardised the nature and amount of the so-called reservation fee – Article 32(2) of the new Developer’s Act – which may not exceed 1% of the price of the residential premises or a detached house specified in the prospectus.
It is necessary to systematise the following concepts after the amendment:
(i) the reservation agreement is a named contract,
(ii) the reservation fee does not constitute a deposit or advance payment in the strict sense.
The function of the reservation fee, as the name suggests, is to temporarily exclude from the sale of specific residential premises or a detached house.
The enumerated cases for the return of the reservation fee to the purchaser under Article 34 of the New Development Act are:
(i) the reserving party has not obtained a positive credit decision or a promise to grant a loan, as referred to in the second sentence of Article 31, due to a negative creditworthiness assessment within the meaning of Article 4(11) of the Act of 23 March 2017 on mortgage credit and supervision of mortgage credit intermediaries and agents;
(ii) the developer or an entrepreneur other than the developer referred to in Article 4 fails to perform the obligation under the reservation agreement;
(iii) the developer has amended the prospectus or its appendices without informing the reserving party.
Real estate market practice shows that many developers stipulate in the reservation agreement additional fees or costs resulting, for example, from the workload of the legal or accounting department. This provision requires caution, precision of wording and a substantive understanding of the current position of the Office of Competition and Consumer Protection .
*Depending on the legal basis for the reimbursement of the reservation fee, the reimbursement may be in the double amount of the reservation fee (hybrid elements characteristic of the institution of a deposit within the meaning of the Civil Code),
**The developer is obliged to deposit the reservation fee in the housing trust account maintained for the development project.
8 October 2023
