For the purchase of real estate by a limited liability company the consent of the shareholders’ meeting is required (unless the articles of association provide otherwise). Often, before purchasing, for example, a plot of land, a preliminary agreement is concluded. Is the consent of the shareholders required to sign it?
The preliminary agreement covers only the obligation to conclude another agreement in the future (the final agreement). Only the final agreement will transfer the ownership of the real estate to the limited liability company. As it follows, the preliminary agreement does not lead directly to the purchase of real estate. If the party obliged to conclude the final contract evades its conclusion, the other party may only demand compensation for the damage it suffered because it was counting on the conclusion of the final contract.
According to the prevailing view, both the initiation of negotiations by the company’s management board regarding the purchase of real estate (perpetual usufruct of land) and the conclusion of a preliminary agreement do not require a resolution of the shareholders [See, for example, the judgment of the Court of Appeal in Warsaw of October 21, 2015, case number VI ACa 1131/14].
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