BREEAM and LEED certification – legal implications

A German asset manager acquires a Warsaw office tower and discovers – three months before the planned refinancing – that the building's BREEAM "Very Good" certificate has lapsed. The lender's green-loan covenants require a valid certificate. Recertification takes up to six months. The deal stalls, and the borrower faces a margin step-up of 150 basis points. That scenario is not hypothetical. It repeats itself in Polish commercial real estate every quarter.

BREEAM and LEED certification in Poland creates a web of legal obligations that touch construction permits, commercial lease terms, sale and purchase agreements, and green-finance covenants. Polish building law – administered through the Chief Inspectorate of Construction Supervision (Główny Inspektor Nadzoru Budowlanego, GINB) and the National Court Register (Krajowy Rejestr Sądowy, KRS) for corporate counterparties – does not mandate BREEAM or LEED. However, contractual commitments in lease agreements and loan documentation make certification a de facto legal requirement. Missing a recertification deadline can trigger personal liability of directors, lease termination rights, and loan acceleration.

This page explains the regulatory context, the contractual instruments through which certification obligations arise, the most common legal pitfalls, and the cross-border considerations that matter most to foreign investors. A self-assessment checklist closes the analysis. Readers who are also considering Polish real estate acquisition from an EU-investor perspective may find useful background in our guide on buying property in Poland as a France national.

What is the regulatory basis for BREEAM and LEED in Poland?

Neither BREEAM nor LEED is embedded in Polish statute. The Prawo budowlane (Construction Law Act, PBA) governs permits, occupancy approvals, and technical conditions. It does not reference either scheme. The legal weight of certification comes from three sources: private contract, lender policy, and – increasingly – EU taxonomy regulation applied by Polish financial institutions supervised by the Polish Financial Supervision Authority (Komisja Nadzoru Finansowego, KNF).

The EU Taxonomy Regulation requires financial market participants to disclose the proportion of taxonomy-aligned assets. For real estate, "substantial contribution to climate change mitigation" typically requires a top-quintile energy performance certificate or an equivalent third-party label such as BREEAM "Excellent" or LEED "Gold." Polish banks, responding to KNF guidance issued since 2023, have begun embedding taxonomy-alignment clauses directly into facility agreements. A building that loses its BREEAM rating therefore loses its taxonomy-alignment status – and with it, the preferential pricing of the green tranche.

The Polish Energy Performance of Buildings Act (ustawa o charakterystyce energetycznej budynków) runs in parallel. It requires an energy performance certificate (EPC) for every building sold or let. BREEAM and LEED assessors routinely rely on EPC data, so deficiencies in the EPC process surface as gaps in the certification file. A missing or outdated EPC – which must be renewed every ten years or upon material renovation – can block a BREEAM renewal assessment entirely.

One concrete figure matters here: under the Construction Law Act, the occupancy permit (pozwolenie na użytkowanie) is a prerequisite for a valid BREEAM post-construction assessment. Buildings without a final occupancy permit – a common situation in phased developments – cannot obtain a certified rating. Delays at the GINB can therefore cascade into certification delays of three months or more.

How do certification obligations enter commercial lease and sale agreements?

Certification obligations most often enter the legal picture through three contractual routes: lease agreements, sale and purchase agreements (SPAs), and green-loan or green-bond documentation. Each creates distinct legal exposure. Failing to identify which obligations apply – and to whom – before signing forfeits the right to negotiate protective mechanics after the fact.

In commercial lease agreements, landlords in the Polish office and logistics markets routinely include a "green building covenant." The tenant covenants to operate the premises in a manner consistent with the building's certification requirements. The landlord covenants to maintain the certificate at a specified minimum level – typically BREEAM "Very Good" or LEED "Gold" – throughout the lease term. A breach by the landlord entitles the tenant to a rent reduction, and in some drafts, a termination right after a cure period of 90 days. We secured a reversal of a disputed green-covenant penalty exceeding PLN 1.8m for a logistics tenant in the Mazowieckie region (spring 2025), where the landlord had allowed the BREEAM certificate to lapse during a change of assessor.

In SPAs, buyers increasingly require a certificate warranty: the seller warrants that the building holds a valid certificate at a specified level on the date of completion. The warranty is backed by a retention of between 2% and 5% of the purchase price, held in escrow for 12 to 24 months. If the certificate lapses or is downgraded within the retention period – for example, because the post-construction assessment reveals non-compliant systems – the buyer draws on the escrow. Sellers who do not carry out a pre-sale certification audit routinely face escrow draws they could have avoided.

For foreign investors, the interaction between SPA warranties and Polish general civil law (the Kodeks cywilny, Civil Code) on statutory defect liability deserves attention. Polish law provides a two-year statutory warranty period for physical defects. A certification defect – for instance, a ventilation system that does not meet the specification on which the BREEAM assessment was based – can constitute a physical defect under the Civil Code, triggering statutory remedies that run alongside, and sometimes override, the contractual warranty regime.

What are the main legal pitfalls in certification management?

The most frequent legal pitfall is the assumption that certification is a one-off technical event rather than an ongoing contractual obligation. BREEAM In-Use certificates – the scheme most commonly applied to existing Polish office and retail assets – expire after three years. LEED O+M (Operations and Maintenance) recertification is required every five years. Missing either deadline while the lease or loan documentation requires a valid certificate creates immediate default risk.

A second pitfall involves the allocation of certification costs in multi-tenant buildings. BREEAM assessors charge between EUR 8,000 and EUR 25,000 per assessment, depending on building size and complexity. Service charge provisions in Polish commercial leases frequently exclude "extraordinary certification costs" from the recoverable service charge. Landlords who have not drafted their leases carefully find that recertification costs fall entirely on them – particularly where the building has more than one anchor tenant with conflicting interpretations of the service charge schedule.

A third pitfall is the FIDIC interface. Many Polish construction contracts for certified buildings are based on FIDIC Yellow Book or Silver Book forms. FIDIC disputes frequently arise when the contractor argues that the employer's BREEAM specification constitutes an employer's requirement that was not properly defined in the contract documents. If the BREEAM target level is stated only in the employer's brief and not in the technical specification annexed to the FIDIC contract, the contractor can claim a variation for any work needed to achieve the rating. Our team has handled over 15 FIDIC arbitration claims in Poland where certification requirements were the root cause of the dispute. Investors considering cross-border construction procurement should also review our analysis of real estate practice in the Netherlands for comparative FIDIC approaches.

A fourth – and underappreciated – risk is director liability. Where a Polish special-purpose vehicle (SPV) holds a certified building and the SPV's loan agreement contains a green-covenant undertaking, a director who allows the certificate to lapse without notifying the lender may face personal liability for breach of fiduciary duty under the Kodeks spółek handlowych (Commercial Companies Code, KSH). That liability is not capped. It is personal, joint, and several.

How should foreign investors structure their Polish certification strategy?

Foreign investors – particularly those from markets where BREEAM or LEED is a standard transaction condition, such as the United Kingdom, Germany, or the Netherlands – often underestimate the additional legal layer that Polish administrative law adds to certification management. The starting point is a legal due diligence (LDD) that covers not only the certificate itself but the underlying technical compliance file.

The LDD should confirm three things within the first 30 days of any acquisition process. First, that the occupancy permit is final and unchallengeable – meaning the appeal period of 14 days from service has expired and no administrative court challenge is pending before the Provincial Administrative Court (Wojewódzki Sąd Administracyjny, WSA). Second, that the EPC is current and consistent with the data used in the BREEAM or LEED assessment. Third, that all lease agreements contain consistent green-building covenants that do not conflict with each other or with the lender's green-loan undertaking.

We obtained interim measures protecting assets worth over EUR 12m for a Dutch investor's Polish subsidiary in Lower Silesia (autumn 2024), where a competing creditor had challenged the validity of a green-bond covenant on the grounds that the underlying BREEAM certificate had been issued for a different legal entity than the borrower. The case turned on the question of whether a certificate issued to a developer SPV transfers automatically to a purchaser SPV on a share deal. It does not, under current Polish law and BRE Group certification rules. The certificate must be retransferred – a process that takes between four and eight weeks and requires the assessor's written consent.

Foreign investors should also consider the interaction between certification and non-compete obligations in anchor tenant leases. Some anchor tenants in Polish retail parks negotiate non-compete clauses that are conditional on the building maintaining a minimum BREEAM rating. If the rating drops, the non-compete lapses, and a competing retailer can open nearby. That is an irreversible competitive consequence that no amount of subsequent recertification can undo. For background on non-compete enforceability in Polish law more broadly, see our article on non-compete clauses in Poland.

What should you prepare before signing a certified building deal?

Preparation before signing is the single most effective risk-reduction step. The following checklist covers the minimum legal review that any buyer, lender, or tenant should complete before committing to a certified building transaction in Poland. Each item corresponds to a legal exposure identified in the sections above.

Certificate validity and expiry date – confirm the certificate is current, identify the next recertification deadline, and verify that the assessor of record is still engaged.
Occupancy permit status – obtain a certified extract from the GINB register confirming the permit is final; check for pending WSA appeals.
EPC currency – confirm the energy performance certificate was issued within the last ten years and that its data matches the BREEAM or LEED assessment file.
Lease covenant consistency – map all green-building covenants across every lease in the building; identify conflicts between landlord obligations and tenant operational requirements.
FIDIC technical specification – where the building is under construction or recently completed, confirm that the BREEAM or LEED target is stated in the FIDIC technical specification, not only in the employer's brief.

Three business scenarios illustrate how this checklist applies in practice. A manufacturing investor acquiring a logistics warehouse near Wrocław should focus on items 1, 2, and 5 – the BREEAM Industrial scheme has specific post-occupancy requirements that differ from the standard BREEAM New Construction assessment. An IT company taking a commercial lease in a Warsaw office park should focus on items 3 and 4 – EPC data and lease covenant consistency are the primary risk vectors for a tenant. A foreign investor acquiring a Polish retail portfolio on a share deal should treat all five items as mandatory, with particular attention to item 1 – the certificate retransfer process described above.

The cost of a thorough pre-signing legal review is typically between EUR 5,000 and EUR 15,000, depending on portfolio size. The cost of a lapsed certificate discovered post-closing – including lender margin step-ups, escrow draws, and potential litigation – routinely exceeds EUR 200,000. The economics are straightforward.

Specific circumstances in your transaction require targeted legal analysis before any irreversible commitment is made. A green-covenant default or a certificate lapse can preclude refinancing, trigger lease termination rights, and expose directors to personal liability – none of which can be undone after the fact.

If your company is acquiring, financing, or leasing a BREEAM- or LEED-certified building in Poland – and the transaction involves green-loan covenants, multi-tenant leases, or FIDIC construction contracts – we will conduct a targeted LDD, map all certification obligations, draft or review the relevant contractual mechanics, and coordinate with the BREEAM or LEED assessor on retransfer or recertification: info@kordeckipartners.com.

Frequently asked questions

Q: Does Polish law require a building to hold a BREEAM or LEED certificate to obtain a construction or occupancy permit?

A: No. The Construction Law Act does not require BREEAM or LEED certification for any class of building. The occupancy permit is issued by the GINB on the basis of technical compliance with Polish building regulations, not with any voluntary certification scheme. Certification obligations arise exclusively from private contracts – lease agreements, SPAs, and loan documentation – and from EU taxonomy requirements applied by lenders.

Q: How long does BREEAM recertification take in Poland, and what does it cost?

A: For an existing office or logistics building, a BREEAM In-Use recertification typically takes between three and six months from instruction to certificate issue. The assessor's fee ranges from EUR 8,000 to EUR 25,000. Where the building has changed ownership on a share deal, add four to eight weeks for the certificate retransfer process. Budgeting for recertification at least nine months before the existing certificate expires is the standard approach for well-managed portfolios.

Q: Can a tenant's operational changes cause the building to lose its BREEAM rating?

A: Yes, and this is a common misconception. BREEAM In-Use assessments cover management and operational performance, not only the physical fabric of the building. If a tenant installs non-compliant fit-out, increases energy consumption beyond the assessed baseline, or disables building management systems, the BREEAM assessor may downgrade or withdraw the certificate at the next review. Green-building covenants in leases exist precisely to address this risk, but they require careful drafting to be enforceable under Polish Civil Code principles.

KORDECKI & Partners is a law firm based in Warsaw and Krakow, advising business clients across 30 jurisdictions. Our team combines expertise in Polish and international law with a practical approach to real estate transactions, construction disputes, and green-building compliance. We work with Polish entrepreneurs, foreign investors, and in-house legal teams. To discuss your situation, contact info@kordeckipartners.com.