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EDITORIAL
Welcome to the fourteenth edition of The International Comparative Legal
Guide to: Real Estate.
This guide provides corporate counsel and international practitioners with a
comprehensive worldwide legal analysis of the laws and regulations of real
estate.
It is divided into two main sections:
One general chapter. This chapter covers the topic of forward funding.
Country question and answer chapters. These provide a broad overview of
common issues in real estate laws and regulations in 31 jurisdictions.
All chapters are written by leading real estate lawyers and industry specialists
and we are extremely grateful for their excellent contributions.
Special thanks are reserved for the contributing editor Iain Morpeth of Ropes &
Gray LLP for his invaluable assistance.
Global Legal Group hopes that you find this guide practical and interesting.
The International Comparative Legal Guide series is also available online at
www.iclg.com.
PREFACE
Iain Morpeth
Partner
Ropes & Gray LLP
Contributing Editor
Chapter 19
1.1 Please briefly describe the main laws that govern 3.1 What are the types of rights over land recognised in
real estate in your jurisdiction. Laws relating to your jurisdiction? Are any of them purely contractual
leases of business premises should be listed in between the parties?
response to question 10.1. Those relating to zoning
and environmental should be listed in response to
Apart from ownership, Dutch law features other, less encompassing,
question 12.1. Those relating to tax should be listed in
response to questions in Section 9. real rights, viz. erfdienstbehaarheden (easements, servitudes), erfpacht
(leasehold, or emphytuesis), gebruik (usus), and hypotheek (mortgage).
The law of property demonstrates as other parts of Dutch law that Easement is regulated in article 5:70 DCC. An easement is an
the Dutch legal system belongs to the Romano-Germanic family. encumbrance imposed on an immovable servient property, in favour
Real estate is mainly governed by written laws on a governmental of another immovable dominant property. An easement can only give
level, for instance the Dutch Civil Code (DCC) and land register rise to a negative obligation, a debt. For example: if an immovable
laws. property is not directly accessible from the public road, an easement
can be established. This means that the owner of the property
beyond the property in the forefront with access to the public road,
1.2 What is the impact (if any) on real estate of local can make use of the property in the forefront to gain access to the
common law in your jurisdiction?
public road. Example: right of passage or access. This is obvious if
a property is only accessible by way of another property. Regarding
In principle, Dutch law has little or no common law. Despite this, residences, it is common that access to the backyard requires passage
there exists on valid case law in which legislation is interpreted by over another property. If this is true, the right of easement applies
judges. Such jurisprudence is applied to cases with similar facts. as well, even though the front door has access to the main road.
Regarding a leasehold, the holder of this right, the leaseholder, has
1.3 Are international laws relevant to real estate in your the authority to be in possession of an immovable property owned
jurisdiction? Please ignore EU legislation enacted by another party, for both its use and possession. This arrangement
locally in EU countries. is useful in practice since, conditions not possible within the context
of ownership can be attached to a lease (such as the opening of
This is not applicable. a branch for a specific period). The owner is called the ‘bloot
eigenaar’ or bare owner.
A mortgage is a real right that can be established on all transferable
2 Ownership
registered property (articles 3:277 (1), 3:228 DCC). Its serves as
security. In case of non-performance, the creditor has a priority in
2.1 Are there legal restrictions on ownership of real estate recovering his debts, but he is never entitled to keep the property.
by particular classes of persons (e.g. non-resident The right to use the land (uses) is solely based on contractual
persons)?
agreements between the parties.
Netherlands
Beneficial ownership is a right to use a good of which the legal
or qualities of title on first registration? Please give
ownership is within the hands of a third party. Ownership is details. First registration means the occasion upon
transferred, but legal ownership remains with the transferor. The which unregistered land or rights are first registered
beneficial owner usually also has the right to delivery of the good in the registries.
later. In the case of beneficial ownership, ownership is effectively
transferred, but legal ownership remains with the transferor. This is not applicable, see the answer to question 4.1.
The legal and beneficial ownership of real estate can be split. The
legal entitlement is registered with the land registry. If the entity
4.6 On a land sale, when is title (or ownership) transferred
entitled to the legal ownership is not entitled to the beneficial to the buyer?
ownership, the land registry does not reflect this division in all
cases. The split of legal and beneficial ownership is apparent from
To achieve transfer of title, tradition (conveyance) of property must
the land register if the legal owner acquired the legal ownership in
be affected by a party who has a right to dispose of the property
his capacity of, for example, custodian of the beneficial owner, or
and by a valid causa. For immovable property and other registered
if the legal ownership and beneficial ownership ware transferred by
property, the law requires delivery by notarial deed and registration
a seller to the purchasers in the same deed of transfer. However, if
of that deed in the public registers intended for that purpose (articles
the full title was transferred and the titleholder transfers solely the
3:89 (1) and (4) DCC). Delivery is only complete when the deed
beneficial ownership, this is not registered with the land registry.
is registered in the public registers. For the delivery of registered
Beneficial ownership in practice is distinguished from legal goods, at the moment of delivery (the registration of the deed in the
ownership. Beneficial ownership is not a right addressed in the public register), the other two requirements of transfer of ownership
DCC. There are currently no legislative proposals which wish to must also apply: a valid title; and power of disposal.
change this.
4.1 Is all land in your jurisdiction required to be Ranking between the different liens is dependent on the time of
registered? What land (or rights) are unregistered? the establishment: an older lien has priority over a younger lien
(priority principle). An exception to this rule is if the younger lien
Yes, all land is required to be registered. is established on goods already pledged and these goods are then
brought into the possession of the holder of the younger lien (or a
4.2 Is there a state guarantee of title? What does it third party). In that case, a change in the ranking takes place, and
guarantee? the younger lien takes precedence over the older lien.
No, such title does not exist in the Netherlands. 5 The Registry / Registries
A transaction in relation to immovable property cannot be completed 6.2 How and on what basis are these persons
electronically. The rights described in the deed of transfer and remunerated?
mortgage deeds must be entered in the register. Ownership
information can be consulted online through the website of the land 1. Notary: Notaries are free to ask whatever remuneration for
register. their services. The drawing up of the deed of transfer is
usually subject to a fixed fee.
2. Real estate agent: Remuneration received by a real estate
5.4 Can compensation be claimed from the registry/ agent at the sale of a property exists of a percentage of the
registries if it/they make a mistake? purchase price. This amount is referred to as commission or
real estate commission. Besides this, there are costs attached
An injured party can hold the land register accountable for a mistake to the drafting of taxation reports, these are commonly fixed
in registration, this can be done through starting legal proceedings. prices set by the real estate agent.
3. Structural engineer: The structural engineer is free to ask
whatever remuneration for their services. The costs for the
5.5 Are there restrictions on public access to the
drawing up of a structural report are often dependent on the
register? Can a buyer obtain all the information he
might reasonably need regarding encumbrances and object of the inspection.
other rights affecting real estate and is this achieved
by a search of the register? If not, what additional 6.3 Is there any change in the sources or the availability
information/process is required? of capital to finance real estate transactions in
your jurisdiction, whether equity or debt? What are
The land register, registers immovable property, such as houses and the main sources of capital you see active in your
business premises and the rights and encumbrances that are attached market?
to them. This information is open to the public so that no mistake
can arise from uncertainty concerning who has a right to what. Regarding a mortgage through a bank or other financial institutions,
Fast and direct access to information from the register is essential there has been a shift in the Dutch financial market. The amount one
for legal certainty and the transparency of the real-estate market. can loan is decreasing, moreover, one must present more capital.
For purchase, selling, and investment reasons it is essential that The Dutch government has organised an arrangement, whereby
you are dealing with the correct person or entity. Without reliable parents can, donate to their children, between the ages 18 and 40, an
information, people are less willing to do business with each other. amount of EUR 100,800 – tax-free. This donation must be used for
For this reason, public access to such information is legally ensured. the purchase, improvement or maintenance of their home or for the
This is true for property which has been seized as well. This is repayment of debt on their home. As an alternative to a loan from
no different under the new privacy rules (General Data Protection a bank, an increasing number of mortgages are arranged with third
Regulation) because an exception for public registers is included. parties; for example, a family member or private investor.
All personal details disclosed in purchase and mortgage deeds are
open to the public. This includes the following personal details: 6.4 What is the appetite for investors and/or developers
■ Name of the entitled person (first and last name). to invest in your region compared to last year and
what are the sectors/areas of most interest? Please
■ Address. give examples.
■ Date and place of birth.
■ Residency at the time of acquisition of title. The demand for financing of the purchase of rented housing has
■ Name of partner. increased substantially in recent years. It is seen as an investment
■ Number of identification documents (passport, driver licence; where one can make some form of return and enjoy the appreciation
only upon request of the whole document). The social of the property(s).
security number is not disclosed by the land register. The great pressure on the housing market has led to all means being
employed to create (inner-city) living space. The third trend is
6 Real Estate Market refinancing of existing real estate (portfolios) because the interest
rate is historically low. Finally, sustainability starts to play a major
role in the real estate sector. A lot of real estate needs to be improved
6.1 Which parties (in addition to the buyer and seller to receive better energy labels and everything must be sustainable
and the buyer’s finance provider) would normally or even recycled.
be involved in a real estate transaction in your
jurisdiction? Please briefly describe their roles and/or
duties. 6.5 Have you observed any trends in particular market
sub sectors slowing down in your jurisdiction in
terms of their attractiveness to investors/developers?
1. Notary. Delivery can only take place with the involvement of
Please give examples.
a notary. A notary drafts the necessary transfer deed (notarial
deed).
No, momentarily there are no sub sectors slowing down.
7 Liabilities of Buyers and Sellers in Real 7.6 What (if any) are the liabilities of the buyer (in addition
Estate Transactions to paying the sale price)?
The buyer is obliged to fulfil the agreement. The seller can request
7.1 What (if any) are the minimum formalities for the sale
the buyer to deposit 10% of the purchase price at a notary (if agreed
and purchase of real estate?
Netherlands
upon) as a guarantee that he will fulfil his or her obligations.
The right of a lien and the right of a mortgage are limited rights, they
7.4 Do sellers usually give any form of title “guarantee”
extend to the claim of payment of a sum of money which is prioritised
or contractual warranties to the buyer? What would
be the scope of these? What is the function of any above the claim of other creditors. If this right is encumbered upon
such guarantee or warranties (e.g. to apportion risk, registered property, then it is categorised as a mortgage, if it is
to give information)? Would any such guarantee or encumbered upon another property, then it is seen as a right of lien.
warranties act as a substitute for the buyer carrying A right of lien or mortgage upon a thing attaches to all that ownership
out his own diligence? encompasses (article 3:227 DCC).
Specific rules apply to the sale of shares, for instance, regarding co-
8.5 How is a real estate lender protected from claims shareholders and pricing.
against the borrower or the real estate asset by other
creditors?
9 Tax
Mortgages have a certain assigned rank among each other. In
Netherlands
8.6 Under what circumstances can security taken by a A person who purchases a house in the Netherlands pays transfer
lender be avoided or rendered unenforceable?
tax. One also pays transfer tax on rights over immovable property,
for instance a lease and upon shares that you receive of a BV, NV
To find a balance in interests, the curator in bankruptcy has the or partnership of which its capital almost predominantly exists of
authority, under article 58 of the Bankruptcy Act (Faillissementswet), immovable assets. The transfer tax for residences amounts to 2%.
to provide the secured creditor a reasonable period to secure his For other immovable assets, such as business premises, a rate of 6%
rights. This must be executed within a period, for the goods to be is applicable.
excluded from the bankruptcy. In the enforcement of the mortgage
right on real estate, the property must therefore have been sold.
9.2 When is the transfer tax paid?
If the secured creditor does not make use of this opportunity, the curator
can claim it and sell it himself. The proceeds will then be accumulated
Usually, the notary collects the transfer tax. Before the Purchaser
upon the estate, the creditor will only be entitled to the proceeds once
visits the notary to sign the deed of delivery of the house, the
the general bankruptcy costs over the proceeds are covered.
Purchaser deposits the purchase price and the amount of transfer tax
due in the account of the notary. The notary pays the transfer tax to
8.7 What actions, if any, can a borrower take to frustrate the tax authorities on your behalf.
enforcement action by a lender?
9.5 What other tax or taxes (if any) are payable by the
For security over shares, a right of lien must be acquired as it can be seller on the disposal of a property?
placed upon non-registered goods, the same as movable goods such
as shares. The transfer in case of enforcement of the right of lien also
This is not applicable.
occurs in the presence of a notary, as defined in the law, and delivery
thereof takes place by means of a notarial deed. Furthermore, the right
of lien has priority in a bankruptcy. As a result, a creditor, based on 9.6 Is taxation different if ownership of a company (or
his right of lien, will claim his debts in a manner as if no bankruptcy other entity) owning real estate is transferred?
had taken place before other creditors. In the event of bankruptcy, the
creditor, based on his right of lien, is entitled to the shares encumbered This is not applicable.
with the right of lien, which includes the right to dividends and voting.
Netherlands
wishes to transfer the lease. The landlord should give consent
10 Leases of Business Premises in case the tenant wishes to transfer the contract to party that
takes over his business. Such consent is form free and, as in
this case, can be deduced from the fact that the other party
10.1 Please briefly describe the main laws that regulate concludes further agreements with the relevant third party or
leases of business premises. makes rental payments to the third party and no longer to the
original counterparty.
(Rental) regulations distinguish between two different types of f) In general, maintenance is on the account of the landlord.
business premises: the 290-business premises (middenstands- For instance, exterior painting or the maintenance of the roof.
bedrijfsruimte, article 7:290 DCC); and the 230a-business premises For small repairs the tenant is responsible.
(overige bedrijfsruimte, article 7:230a DCC).
10.4 What taxes are payable on rent either by the landlord
or tenant of a business lease?
10.2 What types of business lease exist?
period. If the tenant does not agree, then the landlord must go to the defined, enforceable legal obligations or something
not amounting to enforceable legal obligations (for
subdistrict court with the request to terminate the rental agreement.
example aspirational objectives).
The rental agreement will continue until the court has decided.
Termination by the subdistrict court
Since 1 January 2015, at the time of purchase, lease and delivery of
If the tenant does not agree with the termination by the landlord, the residences, a valid energy label is obligatory. Through this label, the
landlord must request the subdistrict court to terminate the rental new owner receives information as to the energy efficiency of the
agreement by the end of the first five years. The subdistrict court building. This obligation is known to homeowners; this obligation
can only grant this request in two situations, but does not have to for business premises is much less prominent, as noticed in practice.
do this, when:
Of course, there are relevant exceptions applicable. Buildings
■ the tenant did not act as a good tenant; or which are intended for the production or storage of materials and
■ the landlord can prove plausibility that he, his spouse, or goods often do not have to be labelled. For buildings with multiple
children need the rented property urgently and in a lasting functions, there is only an obligation to label when a section of the
nature. building used for a purpose exceeds 50 m2. If an industrial hall
Termination after five + five years accommodates an office of 40m2 for instance, an energy label is not
After the end of the second period – after 10 years – the protection compulsory. Buildings which are used for agricultural purposes,
period has expired. The landlord then has more options to cancel. protected monuments and temporary buildings that are used for a
Both the tenant and the landlord can cancel the rent. The same maximum of two years are also exempted.
requirements apply as for cancellation at the end of the first five The obligation therefore applies to most buildings. That means that
years. If the tenant disagrees with the rental notice, then he can there is progress to be made about sustainability. Real estate agents
again go to the subdistrict court. In several cases the subdistrict can direct their services with this obligation in mind – especially in
court must rule in the landlord’s favour: the benefit of sustainability.
■ the tenant did not act as a good tenant;
■ the landlord can prove plausibility that he, his spouse or 10.8 Are there any trends in your market towards more
children need the rented premises urgently and in a lasting flexible space for occupiers, such as shared
nature; short-term working spaces (co-working) or shared
■ the landlord (for instance the municipality) wants to realise residential spaces with greater levels of facilities/
compliance with a valid zoning plan on the business premise; activities for residents (co-living)? If so please provide
and examples/details.
Netherlands
rental contract.
■ Implementation of a valid zoning plan (must be necessary).
(A) In the case of a rental agreement for an indefinite period, the
parties have agreed an initial date of the rental period (for
example, 1 January 2018), but no end date. Agreements 12 Public Law Permits and Obligations
relating to accommodation that can be concluded for a
definite period and for which the landlord, after these periods
has expired, will once again have access to the dwelling, are 12.1 What are the main laws which govern zoning/
distinguished as follows: permitting and related matters concerning the use,
■ Rental agreements for housing based on the Vacancy Act. development and occupation of land? Please briefly
■ Rental agreements for housing based on article 7: 274 (2) describe them and include environmental laws.
DCC (diplomatic clause).
■ Rented living space to certain target groups. See article In addition to general administrative law, the following laws apply in
7: 274a DCC (disability), article 7: 274b DCC, article 7: general terms: the environmental management act; the housing law;
274c DCC, article 7: 274d DCC, article 7: 274e DCC, and the law spatial planning; and the general provisions environmental
article 7: 274f BW (large families). law (Wabo).
■ Rental agreements for housing accommodation of a short-
term nature (article 7: 232 (2) BW).
12.2 Can the state force land owners to sell land to
■ The short-term rental agreement for independent living it? If so please briefly describe including price/
space of a maximum of two years and non-independent compensation mechanism.
living space of a maximum of five years (article 7: 271 (1)
DCC).
If the government needs your land or building for the public interest,
(B) The rent of your house could be from 3.9% up to 5.4% in such as for the construction of a road, it tries to buy it from you. It
2018. The increase depended on your income in 2016 and allows the value of your land, with any buildings, to be valued. Based
only applies to social housing. In the free sector there is no
on this valuation, you will receive an offer for full compensation. If
maximum to contractual agreed rent increase. Most landlords
increase the rent (once a year) on 1 July using the price index you do not agree and do not agree after negotiation, the government
figure. will start an expropriation procedure.
(C) The tenant is almost always entitled to rental protection. The Expropriation Act stipulates that you may not be deteriorated by
Possible co-tenants and sub-tenants are also protected. This the expropriation, not in capital or in income. You therefore receive
means that a tenant cannot simply be removed from his home, full compensation for all damage that is the direct and necessary
even if the agreed rental period has expired or the property consequence of the expropriation. The compensation is settled with
has been sold. The landlord must cancel the lease and give a any benefits or other allowances such as a planning compensation.
valid reason to terminate the lease. If he has no valid reason,
In addition, there is the Municipalities Preferential Rights Act. This
but you agree in writing to the cancellation, the contract will
end. law obliges landowners to sell the land first to the municipality. This
only applies to land where a pre-emptive right is established.
(D) The term ‘defect’ covers all restrictions on living enjoyment
that are not for the account of the tenant himself. The
landlord is, in principle, obliged to remedy all defects if the 12.3 Which bodies control land/building use and/or
tenant is not responsible for this himself. The tenant is liable occupation and environmental regulation? How do
if the damage to the rented property arose because he did not buyers obtain reliable information on these matters?
comply with the obligations from the rental agreement. It
is assumed that all damage to the rented property has been
Authorities that monitor the enforcement of environmental
caused by the tenant, apart from fire damage. The tenant will
legislation operate mainly at local/municipal level. For information
then have to prove that the damage was not caused by him.
Only when regarding fire damage is the burden of proof with about this, the buyer can best contact the municipality where the
the lessor. He will then have to prove that the fire was caused property is situated.
by a cause attributable to the tenant.
12.4 What main permits or licences are required for
11.4 Would there be rights for a landlord to terminate a building works and/or the use of real estate?
residential lease and what steps would be needed
to achieve vacant possession if the circumstances In most cases, an environmental permit will be required. Each
existed for the right to be exercised? municipality then also has its own local regulations. Perhaps the
best known is the General Local Regulation (APV). For example,
The landlord must have a legal reason to be able to cancel the rent, the APV often regulates whether and how advertising bars may be
for example a rent arrear or serious nuisance from the tenant. The placed. Whether you need, a local permit depends on your plans.
contract must be canceled in writing at least three months in advance. You can contact the municipality with the question of which local
For every year that the tenant has rented the living space, one month permits you need.
will be added, up to a maximum of six months in total. If the tenant
does not agree with the cancellation, the rental contract continues.
The landlord can then go to court to try to terminate the lease.
12.5 Are building/use permits and licences commonly 12.9 In what circumstances (if any) is environmental clean-
obtained in your jurisdiction? Can implied permission up ever mandatory?
be obtained in any way (e.g. by long use)?
The soil may be contaminated with hazardous substances.
Yes. An environmental permit is valid until the work is carried out Contaminated soil locations with health risks must be dealt with as
Netherlands
or until the permit is withdrawn. This is, for example, if you are not quickly as possible. In addition, a similar arrangement applies to
yet building after a longer period (three years) or if the construction asbestos-containing materials.
is stationary for a longer period. The permit is never withdrawn
immediately, you will first receive a resolution to withdraw, giving
12.10 Please briefly outline any regulatory requirements
you the opportunity to respond. Implied permission may occur if
for the assessment and management of the energy
the authority fail to decide within the legal time timeframe. performance of buildings in your jurisdiction.
It is sometimes possible to obtain a temporary exemption permit
(explicitly tolerated). In addition, there may also be a tolerance The Energy Performance of Buildings Directive (EPBD) is
situation (or non-enforcement action) than we speak of an implied the European Union’s main legislative instrument aiming to promote
permission. the improvement of the energy performance of buildings within the
Community. The Netherlands has implemented this directive.
12.6 What is the typical cost of building/use permits and
the time involved in obtaining them?
13 Climate Change
The costs vary from approximately 2.5% to 5% of the construction
costs, depending on the level of the construction costs. In the regular 13.1 Please briefly explain the nature and extent of any
procedure the application period is eight weeks and in the extended regulatory measures for reducing carbon dioxide
procedure 26 weeks but the delay of the decision period must be taken emissions (including any mandatory emissions
in to account. The regular procedure applies to most applications. trading scheme).
Netherlands
Tel: +31 20 52 10 100 Tel: +31 20 52 10 100
Email: mvanweeren@blenheim.nl Email: tpruntel@blenheim.nl
URL: www.blenheim.nl URL: www.blenheim.nl
My role as a business lawyer is to ensure the legality of commercial Tim studied Law at the University of Groningen. He then followed
transactions, advising corporations on their legal rights and duties, the master’s degree in Private Law at VU University Amsterdam. Tim
including the duties and responsibilities of corporate officers. As a worked during his studies as an external registrar at the district court
business lawyer I can offer experience and knowledge of construction Midden-Nederland. In addition, he has run several student internships
law, corporate law, arbitration, general contract law and zoning law. within the legal profession. He has been working at Blenheim since
the beginning of 2017.
In my firm, Blenheim, the corporate specialists structure transactions
efficiently, manage data, review agreements, negotiate deals, settle In addition to the private law practice in the broad sense, Tim is mainly
damages, create company structures, draft documents and contracts. involved in liability and insurance law.
When necessary we counsel our clients to confront legal challenges
with aggressive, result oriented solutions.
I try to avoid conflicts, but as a litigator I’m also geared to go to court
if the need arises.
I have advised companies of all sizes, from small start-ups to publicly
listed companies, and in many industries, both local and international.
Regardless of who I am representing, I aim to be an accessible,
professional, practical and creative corporate attorney.
Engaging a business lawyer is an important decision that should not
be based solely upon advertisements. So, before you decide, please
call to discuss our experience and qualifications as well as your legal
situation and ambitions.
Please do feel free to contact me to discuss your Dutch legal issues.
Blenheim is a full-service firm based in Amsterdam consisting of five partners and 21 associates.
The core practice areas of Blenheim include corporate law, employment law, administrative law, intellectual property, financial law, real estate and
property law. Blenheim is an active member of the professional, international network “Lawyers Associated Worldwide”, in which 130 law firms in
106 countries all over the world participate.
www.iclg.co.uk