ICLG

The International Comparative Legal Guide to:

Real Estate 2019

14th Edition
A practical cross-border insight into real estate law

Published by Global Legal Group with contributions from:

ALTIUS Maples and Calder

Anderson Mori & Tomotsune Marval, O’Farrell & Mairal
Blenheim Meyerlustenberger Lachenal AG
Brulc, Gaberščik and partners, Law Firm, Ltd. Norton Rose Fulbright South Africa Inc.
Cordero & Cordero Abogados Pepeliaev Group
Eric Silwamba, Jalasi and Linyama Legal Practitioners Project Law Attorneys Ltd
Ferraiuoli LLC Ropes & Gray International LLP
Gianni, Origoni, Grippo, Cappelli & Partners Shepherd and Wedderburn LLP
Greenberg Traurig Grzesiak sp.k. Simon Reid-Kay & Associates
Greenberg Traurig, LLP Taras Burhan Law Office LLC
Hogan Lovells Tirard, Naudin
Kapellmann Tughan
Kubes Passeyrer Attorneys at Law Valmas Associates
L&L Partners Wintertons Legal Practitioners
Machado, Meyer, Sendacz e Opice Advogados Ziv Lev & Co. Law Office
Mantis & Athinodorou LLC
The International Comparative Legal Guide to: Real Estate 2019

General Chapter:
1 Forward Funding Now! – Iain Morpeth, Ropes & Gray LLP 1

Country Question and Answer Chapters:

2 Argentina Marval, O’Farrell & Mairal: Diego A. Chighizola 5
Contributing Editor
Iain Morpeth, 3 Austria Kubes Passeyrer Attorneys at Law: Dr. David Kubes & Mag. Tina Vollmann 17
Ropes & Gray LLP

Sales Director 4 Belgium ALTIUS: Lieven Peeters & Kathleen Verbiest 27

Florjan Osmani
5 Brazil Machado, Meyer, Sendacz e Opice Advogados: Maria Flavia Seabra &
Account Director Juliana Ribeiro 36
Oliver Smith
6 Costa Rica Cordero & Cordero Abogados: Hernan Cordero B. & Rolando Gonzalez C. 45
Sales Support Manager
Toni Hayward 7 Cyprus Mantis & Athinodorou LLC: Michael Mantis 55
Senior Editors
8 England & Wales Ropes & Gray International LLP: Carol Hopper & Partha Pal 63
Caroline Collingwood &
Suzie Levy
9 Finland Project Law Attorneys Ltd: Matias Forss & Sakari Lähteenmäki 75
CEO
Dror Levy 10 France Tirard, Naudin: Maryse Naudin 83

Group Consulting Editor 11 Germany Kapellmann: Dr. Florian Kirchhof & Dr. Max Mommertz 94
Alan Falach
12 Greece Valmas Associates: Ioannis Valmas 104
Publisher
Rory Smith 13 Hong Kong Simon Reid-Kay & Associates: Simon Reid-Kay 113
Published by
Global Legal Group Ltd. 14 India L&L Partners: Amaresh Kumar Singh & Manjul Mantri 122
59 Tanner Street
London SE1 3PL, UK 15 Ireland Maples and Calder: Diarmuid Mawe & Craig Kenny 140
Tel: +44 20 7367 0720
Fax: +44 20 7407 5255
Email: info@glgroup.co.uk 16 Israel Ziv Lev & Co. Law Office: Moshe Merdler & Ziv Lev 156
URL: www.glgroup.co.uk
17 Italy Gianni, Origoni, Grippo, Cappelli & Partners: Davide Braghini & Domenico Tulli 166
GLG Cover Design
F&F Studio Design
18 Japan Anderson Mori & Tomotsune: Kenichi Yamamoto 177
GLG Cover Image Source
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19 Netherlands Blenheim: Mark van Weeren & Tim Pruntel 186
Printed by
Stephens & George 20 Northern Ireland Tughans: David Jones & Luke Thompson 196
Print Group
November 2018
21 Poland Greenberg Traurig Grzesiak sp.k.: Agnieszka Stankiewicz & Barbara Pancer 204
Copyright © 2018
Global Legal Group Ltd. 22 Puerto Rico Ferraiuoli LLC: Eduardo Tamargo-Motroni & María del Rosario Fernández-Ginorio 214
All rights reserved
No photocopying
23 Russia Pepeliaev Group: Alexey Konevsky & Vladislav Ivanov 223
ISBN 978-1-912509-47-8
ISSN 1749-4745 24 Scotland Shepherd and Wedderburn LLP: David Mitchell & Scott Ritchie 232

Strategic Partners 25 Slovenia Brulc, Gaberščik and partners, Law Firm, Ltd.: Damijan Brulc & Marjetka Kenda 246

26 South Africa Norton Rose Fulbright South Africa Inc.: Pieter Niehaus 255

27 Spain Hogan Lovells: Emilio Gómez Delgado 265

28 Switzerland Meyerlustenberger Lachenal AG: Wolfgang Müller & Denise Läubli 275

39 Ukraine Taras Burhan Law Office LLC: Taras Burhan & Zvenyslava Kit 284

30 USA Greenberg Traurig, LLP: Christina Braisted Rogers 294

31 Zambia Eric Silwamba, Jalasi and Linyama Legal Practitioners: Joseph Alexander Jalasi, Jr. 306

32 Zimbabwe Wintertons Legal Practitioners: Cordellia Nyasha Midzi & Peter Moor 314

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.

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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.

Alan Falach LL.M.

Group Consulting Editor
Global Legal Group
Alan.Falach@glgroup.co.uk

PREFACE

It is a pleasure to have been asked to provide the preface to The International

Comparative Legal Guide to: Real Estate for 2019, which is now in its
fourteenth edition.
The Guide has become a well-established benchmark for international real
estate transactions and is one of the most comprehensive available.
The 2019 edition now contains contributions covering 31 countries round the
globe. With investment capital flowing round the world so much more freely
than in the past, an understanding of the diverse ways in which transactions in
the real estate market are dealt with in different jurisdictions has become an
increasingly important requirement for the international investor.
We hope you find the Guide a useful reference point when faced with a question
concerning cross-border real estate transactions and we encourage you to
contact us with suggestions to improve future editions.

Iain Morpeth
Partner
Ropes & Gray LLP
Contributing Editor
 Chapter 19
Netherlands
Blenheim
1 Real Estate Law
1.1 Please briefly describe the main laws that govern
real estate in your jurisdiction. Laws relating to
leases of business premises should be listed in
response to question 10.1. Those relating to zoning
and environmental should be listed in response to
question 12.1. Those relating to tax should be listed in
response to questions in Section 9.
The law of property demonstrates as other parts of Dutch law that
the Dutch legal system belongs to the Romano-Germanic family.
Real estate is mainly governed by written laws on a governmental
level, for instance the Dutch Civil Code (DCC) and land register
laws.
1.2 What is the impact (if any) on real estate of local
common law in your jurisdiction?
In principle, Dutch law has little or no common law. Despite this,
there exists on valid case law in which legislation is interpreted by
judges. Such jurisprudence is applied to cases with similar facts.
1.3 Are international laws relevant to real estate in your
jurisdiction? Please ignore EU legislation enacted
locally in EU countries.
This is not applicable.
2 Ownership
2.1 Are there legal restrictions on ownership of real estate
by particular classes of persons (e.g. non-resident
persons)?
The Netherlands has no restrictions on the ownership of real estate
by foreigners and does not have a qualitative requirement for the
shareholders in a company if this company is the owner of real
estate.
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Mark van Weeren
Tim Pruntel
3 Real Estate Rights
3.1 What are the types of rights over land recognised in
your jurisdiction? Are any of them purely contractual
between the parties?
Apart from ownership, Dutch law features other, less encompassing,
real rights, viz. erfdienstbehaarheden (easements, servitudes), erfpacht
(leasehold, or emphytuesis), gebruik (usus), and hypotheek (mortgage).
Easement is regulated in article 5:70 DCC. An easement is an
encumbrance imposed on an immovable servient property, in favour
of another immovable dominant property. An easement can only give
rise to a negative obligation, a debt. For example: if an immovable
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,
can make use of the property in the forefront to gain access to the
public road. Example: right of passage or access. This is obvious if
a property is only accessible by way of another property. Regarding
residences, it is common that access to the backyard requires passage
over another property. If this is true, the right of easement applies
as well, even though the front door has access to the main road.
Regarding a leasehold, the holder of this right, the leaseholder, has
the authority to be in possession of an immovable property owned
by another party, for both its use and possession. This arrangement
is useful in practice since, conditions not possible within the context
of ownership can be attached to a lease (such as the opening of
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
registered property (articles 3:277 (1), 3:228 DCC). Its serves as
security. In case of non-performance, the creditor has a priority in
recovering his debts, but he is never entitled to keep the property.
The right to use the land (uses) is solely based on contractual
agreements between the parties.
3.2 Are there any scenarios where the right to land diverges
from the right to a building constructed thereon?
Yes, opstal (the Roman superficies).
The right of superficies provides its holder with the right to own
or acquire, in, on or above, the immovable property of another
buildings, works or vegetation (article 5:101 up to and including
article 5:105 DCC).
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3.3 Is there a split between legal title and beneficial title
in your jurisdiction and what are the registration
consequences of any split? Are there any proposals
to change this?
Beneficial ownership is a right to use a good of which the legal
ownership is within the hands of a third party. Ownership is
transferred, but legal ownership remains with the transferor. The
beneficial owner usually also has the right to delivery of the good
later. In the case of beneficial ownership, ownership is effectively
transferred, but legal ownership remains with the transferor.
The legal and beneficial ownership of real estate can be split. The
legal entitlement is registered with the land registry. If the entity
entitled to the legal ownership is not entitled to the beneficial
ownership, the land registry does not reflect this division in all
cases. The split of legal and beneficial ownership is apparent from
the land register if the legal owner acquired the legal ownership in
his capacity of, for example, custodian of the beneficial owner, or
if the legal ownership and beneficial ownership ware transferred by
a seller to the purchasers in the same deed of transfer. However, if
the full title was transferred and the titleholder transfers solely the
beneficial ownership, this is not registered with the land registry.
Beneficial ownership in practice is distinguished from legal
ownership. Beneficial ownership is not a right addressed in the
DCC. There are currently no legislative proposals which wish to
change this.
4 System of Registration
4.1 Is all land in your jurisdiction required to be
registered? What land (or rights) are unregistered?
Yes, all land is required to be registered.
4.2 Is there a state guarantee of title? What does it
guarantee?
No, such title does not exist in the Netherlands.
4.3 What rights in land are compulsory registrable? What
(if any) is the consequence of non-registration?
Registration in a public directory is sometimes required before legal
effects initiates. As an example, the delivery of registered goods,
e.g. easements, leasehold, superficies and mortgage. These exist of
two components, namely a notarial deed followed by the registration
of a copy thereof in the public registers. Without registration there
is no delivery or establishment of the right.
Registration is mandatory for:
■ transfer, establishment, waiver and allocation (of limited
rights) to registered property;
■ the seizure of registered property;
■ establishing an obligation upon a registered property; and
■ conversion of ownership of an immovable to co-ownership.
4.4 What rights in land are not required to be registered?
A real right means a right that entitles the holder to an immovable
property. A real right contrasts with a personal right which entitles
a person to a performance. Personal rights are for example: gebruik
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Netherlands
(usus); bewoning (habitatio); huur (rental); and bruikleen (loan).
Contrary to real rights, personal rights are not registered.
4.5 Where there are both unregistered and registered land
or rights is there a probationary period following first
registration or are there perhaps different classes
Netherlands
or qualities of title on first registration? Please give
details. First registration means the occasion upon
which unregistered land or rights are first registered
in the registries.
This is not applicable, see the answer to question 4.1.
4.6 On a land sale, when is title (or ownership) transferred
to the buyer?
To achieve transfer of title, tradition (conveyance) of property must
be affected by a party who has a right to dispose of the property
and by a valid causa. For immovable property and other registered
property, the law requires delivery by notarial deed and registration
of that deed in the public registers intended for that purpose (articles
3:89 (1) and (4) DCC). Delivery is only complete when the deed
is registered in the public registers. For the delivery of registered
goods, at the moment of delivery (the registration of the deed in the
public register), the other two requirements of transfer of ownership
must also apply: a valid title; and power of disposal.
4.7 Please briefly describe how some rights obtain
priority over other rights. Do earlier rights defeat later
rights?
Ranking between the different liens is dependent on the time of
the establishment: an older lien has priority over a younger lien
(priority principle). An exception to this rule is if the younger lien
is established on goods already pledged and these goods are then
brought into the possession of the holder of the younger lien (or a
third party). In that case, a change in the ranking takes place, and
the younger lien takes precedence over the older lien.
5 The Registry / Registries
5.1 How many land registries operate in your jurisdiction?
If more than one please specify their differing rules
and requirements.
The Netherlands has one land register (Kadaster). The land register
is an open directory of registered property maintained by the
government, wherein, immovable property and rights thereupon are
registered.
5.2 How do the owners of registered real estate prove
their title?
Based on the deed/or deed of transfer. This deed states among other
things:
■ who the (legal) owner is;
■ who can make use of the whole or part of the property;
■ which limitation apply to its use (for instance, if the property
is a monument);
■ the encompassing area (not applicable to apartments);
■ the title of the transfer; and
■ the purchasing price of the last deed of sale (if known).
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 Blenheim
5.3 Can any transaction relating to registered real estate
be completed electronically? What documents need
to be provided to the land registry for the registration
of ownership right? Can information on ownership of
registered real estate be accessed electronically?
Netherlands
A transaction in relation to immovable property cannot be completed
electronically. The rights described in the deed of transfer and
mortgage deeds must be entered in the register. Ownership
information can be consulted online through the website of the land
register.
5.4 Can compensation be claimed from the registry/
registries if it/they make a mistake?
An injured party can hold the land register accountable for a mistake
in registration, this can be done through starting legal proceedings.
5.5 Are there restrictions on public access to the
register? Can a buyer obtain all the information he
might reasonably need regarding encumbrances and
other rights affecting real estate and is this achieved
by a search of the register? If not, what additional
information/process is required?
The land register, registers immovable property, such as houses and
business premises and the rights and encumbrances that are attached
to them. This information is open to the public so that no mistake
can arise from uncertainty concerning who has a right to what.
Fast and direct access to information from the register is essential
for legal certainty and the transparency of the real-estate market.
For purchase, selling, and investment reasons it is essential that
you are dealing with the correct person or entity. Without reliable
information, people are less willing to do business with each other.
For this reason, public access to such information is legally ensured.
This is true for property which has been seized as well. This is
no different under the new privacy rules (General Data Protection
Regulation) because an exception for public registers is included.
All personal details disclosed in purchase and mortgage deeds are
open to the public. This includes the following personal details:
■ Name of the entitled person (first and last name).
■ Address.
■ Date and place of birth.
■ Residency at the time of acquisition of title.
■ Name of partner.
■ Number of identification documents (passport, driver licence;
only upon request of the whole document). The social
security number is not disclosed by the land register.
6 Real Estate Market
6.1 Which parties (in addition to the buyer and seller
and the buyer’s finance provider) would normally
be involved in a real estate transaction in your
jurisdiction? Please briefly describe their roles and/or
duties.
1. Notary. Delivery can only take place with the involvement of
a notary. A notary drafts the necessary transfer deed (notarial
deed).
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2. The real estate agent often drafts the purchase agreement.
However, the use of a real estate agent is not mandatory.
3. In addition, the buying party often enlists a real estate agent
and/or structural engineer to assess the condition of the
building.
6.2 How and on what basis are these persons
remunerated?
1. Notary: Notaries are free to ask whatever remuneration for
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
agent at the sale of a property exists of a percentage of the
purchase price. This amount is referred to as commission or
real estate commission. Besides this, there are costs attached
to the drafting of taxation reports, these are commonly fixed
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
drawing up of a structural report are often dependent on the
object of the inspection.
6.3 Is there any change in the sources or the availability
of capital to finance real estate transactions in
your jurisdiction, whether equity or debt? What are
the main sources of capital you see active in your
market?
Regarding a mortgage through a bank or other financial institutions,
there has been a shift in the Dutch financial market. The amount one
can loan is decreasing, moreover, one must present more capital.
The Dutch government has organised an arrangement, whereby
parents can, donate to their children, between the ages 18 and 40, an
amount of EUR 100,800 – tax-free. This donation must be used for
the purchase, improvement or maintenance of their home or for the
repayment of debt on their home. As an alternative to a loan from
a bank, an increasing number of mortgages are arranged with third
parties; for example, a family member or private investor.
6.4 What is the appetite for investors and/or developers
to invest in your region compared to last year and
what are the sectors/areas of most interest? Please
give examples.
The demand for financing of the purchase of rented housing has
increased substantially in recent years. It is seen as an investment
where one can make some form of return and enjoy the appreciation
of the property(s).
The great pressure on the housing market has led to all means being
employed to create (inner-city) living space. The third trend is
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
to receive better energy labels and everything must be sustainable
or even recycled.
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?
Please give examples.
No, momentarily there are no sub sectors slowing down.
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7 Liabilities of Buyers and Sellers in Real
Estate Transactions
7.1 What (if any) are the minimum formalities for the sale
and purchase of real estate?
The purchase of real estate, in the event the purchaser is a natural
person who is not exercising on behalf of a profession or company,
is to be done in written form (article 7:2 DCC).
7.2 Is the seller under a duty of disclosure? What matters
must be disclosed?
As a seller you have an obligation to provide information. You must
inform the buyer about (hidden) defects, any charges and limitations
and, for example, easements.
7.3 Can the seller be liable to the buyer for
misrepresentation?
Yes, this is possible if the goods do not meet the requirements that
may be expected of the good. The seller is held liable on the grounds
of an error and/or deception if he was aware of this shortcoming at
the time of the sale.
7.4 Do sellers usually give any form of title “guarantee”
or contractual warranties to the buyer? What would
be the scope of these? What is the function of any
such guarantee or warranties (e.g. to apportion risk,
to give information)? Would any such guarantee or
warranties act as a substitute for the buyer carrying
out his own diligence?
Contractually, in pursuance of the freedom of contract, anything
can be agreed upon if it does not violate the law. This also applies
to the guarantees issued which exclude risks for the buyer/seller.
If the wording of the agreement is not clear, then the contract may
be interpreted as to what the parties intended. Guarantees cannot,
however, exclude the buyer’s obligations to investigate. Especially
parties within their professional capacity are expected to fulfil their
obligation to investigate. Based on these investigations, guarantees
are drawn up. Otherwise, it is not clear which risks fall under which
guarantees. The standardised NVM purchase agreement (the NVM
is a Dutch branch organisation of real estate agents and appraisers)
states that the immovable property that is transferred to the buyer is
in the state in which it is at the completion of the contract, with all
the associated rights and claims, visible and invisible defects. The
starting point is therefore that the buyer accepts the matter in the
state in which it is at the transfer of ownership.
7.5 Does the seller retain any liabilities in respect of the
property post sale? Please give details.
The seller can retain liability when the goods do not meet the
expectation that must/can be made at the sale. Liability based on
this occurs especially when hidden defects occur. The seller can be
held liable for this if he was aware of this defect during the sale, a
possible appeal to a mistake is open.
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7.6 What (if any) are the liabilities of the buyer (in addition
to paying the sale price)?
The buyer is obliged to fulfil the agreement. The seller can request
the buyer to deposit 10% of the purchase price at a notary (if agreed
Netherlands
upon) as a guarantee that he will fulfil his or her obligations.
8 Finance and Banking
8.1 Please briefly describe any regulations concerning
the lending of money to finance real estate. Are the
rules different as between resident and non-resident
persons and/or between individual persons and
corporate entities?
In the field of property financing, largely the following laws apply
in addition to the Civil Code: The General Administrative Law Act,
the Financial Supervision Act, the Act on the Prevention of Money
Laundering and the Financing of Terrorism, and Enforcement of
Consumer Protection Act.
8.2 What are the main methods by which a real estate
lender seeks to protect itself from default by the
borrower?
The right of a lien and the right of a mortgage are limited rights, they
extend to the claim of payment of a sum of money which is prioritised
above the claim of other creditors. If this right is encumbered upon
registered property, then it is categorised as a mortgage, if it is
encumbered upon another property, then it is seen as a right of lien.
A right of lien or mortgage upon a thing attaches to all that ownership
encompasses (article 3:227 DCC).
8.3 What are the common proceedings for realisation of
mortgaged properties? Are there any options for a
mortgagee to realise a mortgaged property without
involving court proceedings or the contribution of the
mortgagor?
The mortgagee and mortgagor cannot agree amongst themselves to
the sale of the good, even after default occurs. The permission of
a preliminary judge can only be received once the judge has seen
the purchase agreement. The sale of the mortgaged goods and of
the shared encumbered by the right of lien takes place according to
a statutory procedure in the presence of a notary and the delivery is
done through a notarial deed (followed by registration in the land
register in case of an immovable property). No special requirements
are attached to the sale and delivery of other goods encumbered by
the right of lien, other than the requirements for the public sales
procedure.
8.4 What minimum formalities are required for real estate
lending?
The establishment of a new mortgage certificate is to be notarised,
and a perspective application is to be filed with the land register. At
the same time, there are no formalities in place regarding entering
a credit facility.
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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

general, the claims based on mortgage certificates prevail over

unsecured or unprivileged claims. 9.1 Are transfers of real estate subject to a transfer tax?
How much? Who is liable?

8.6 Under what circumstances can security taken by a
lender be avoided or rendered unenforceable?
To find a balance in interests, the curator in bankruptcy has the
authority, under article 58 of the Bankruptcy Act (Faillissementswet),
to provide the secured creditor a reasonable period to secure his
rights. This must be executed within a period, for the goods to be
excluded from the bankruptcy. In the enforcement of the mortgage
right on real estate, the property must therefore have been sold.
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
upon the estate, the creditor will only be entitled to the proceeds once
the general bankruptcy costs over the proceeds are covered.
8.7 What actions, if any, can a borrower take to frustrate
enforcement action by a lender?
A person who purchases a house in the Netherlands pays transfer
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
or partnership of which its capital almost predominantly exists of
immovable assets. The transfer tax for residences amounts to 2%.
For other immovable assets, such as business premises, a rate of 6%
is applicable.
9.2 When is the transfer tax paid?
Usually, the notary collects the transfer tax. Before the Purchaser
visits the notary to sign the deed of delivery of the house, the
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
the tax authorities on your behalf.

9.3 Are transfers of real estate by individuals subject to

Enforcement of a right of lien or mortgage by a creditor can be
frustrated through court. This may arise when there is no right to
enforce the right of lien/mortgage because it has not yet fallen into
default or that requirements that are applicable to the drafting of
a notarial deed have not yet been met. Usually, a right of lien or
mortgage upon a good are very strong. In case of unlawful execution
of the enforcement action the court can halt the enforcement.
8.8 What is the impact of an insolvency process or a
corporate rehabilitation process on the position of a
real estate lender?
In most cases, the creditor has a mortgage right on the real estate
of the debtor. A mortgage right has a right of priority in the event
of a bankruptcy. As a result, the creditor has priority over other
creditors in the event of bankruptcy and greater certainty to recover
his or her investment. Exercising these rights occurs as if there
was no bankruptcy. Consequently, they can immediately proceed
to the enforcement of their rights after the bankruptcy has been
pronounced by the judge.
8.9 What is the process for enforcing security over
shares? Does a lender have a right to appropriate
shares in a borrower given as collateral? If so,
can shares be appropriated when a borrower is in
administration or has entered another insolvency or
reorganisation procedure?
income tax?
Labelling plays a significant role in the sale of immovable property.
The rules regarding labelling are formed by jurisprudence. In the
labelling of immovable property such as private assets or corporate
assets, a distinction must be made between corporation tax, income
tax and sales tax. By law, legal entities operate their businesses
with their entire capital. Therefore, the entire capital is regarded as
a business asset. For income tax, immovable property may belong
to private assets. In certain cases, this is mandatory. The choice that
is made regarding income tax does not have to correspond with the
labelling choice of the turnover tax.
9.4 Are transfers of real estate subject to VAT? How
much? Who is liable? Are there any exemptions?
The main rule is that the sale of immovable property is exempt from
VAT. Exceptions to this are new immovable properties up to two
years after first use and the delivery of so-called construction sites.
This category of immovable property is legally taxed with VAT. If
immovable property is not automatically charged with VAT, the parties
can still opt for a VAT-taxed delivery provided the buyer uses the
property for purposes for which he has a full or almost complete right
of deduction. The latter can be particularly advantageous if a VAT-
exempt sale leads to a revision of the deducted VAT from the seller.

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.

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Blenheim
9.7 Are there any tax issues that a buyer of real estate
should always take into consideration/conduct due
diligence on?
See the previous answers in this chapter.
10 Leases of Business Premises
10.1 Please briefly describe the main laws that regulate
leases of business premises.
(Rental) regulations distinguish between two different types of
business premises: the 290-business premises (middenstands-
bedrijfsruimte, article 7:290 DCC); and the 230a-business premises
(overige bedrijfsruimte, article 7:230a DCC).
10.2 What types of business lease exist?
A business premise within the scope of article 7:290 DCC arises in
the case of a company (for instance, a retail business or a restaurant/
café business). This rented space must be accessible to the public
for the direct delivery of moveable goods or services. The hotel and
camping business are also qualified as 290-business premises. All
other cases will qualify as 230a-business premises like office space
and other commercial property.
10.3 What are the typical provisions for leases of business
premises in your jurisdiction regarding: (a) length of
term; (b) rent increases; (c) tenant’s right to sell or
sub-lease; (d) insurance; (e) (i) change of control of
the tenant; and (ii) transfer of lease as a result of a
corporate restructuring (e.g. merger); and (f) repairs?
a) If a business premise is rented within the scope of article
7:290 DCC, the contract is for a period of five years. If it has
not been cancelled after 10 years, it will transfer to a contract
for an indefinite period. A lease agreement for two years
for an ex-290-business premise can also be agreed, which
ends automatically on the end date (if no other arrangement
has been agreed to). If the landlord and tenant agree to a
rental period of five years, formal permission from a judge is
needed. Regarding 230a-business premises, the rental period
is not regulated.
b) After five years, both the tenant and landlord can request a
change in the rent. If the parties cannot come to an agreement,
then a judge can determine the rent. The judge will adjust the
rent to a few comparable business premises near the rented
property.
c) If the tenant wants to terminate his rental contract prematurely,
because he wishes to sell his business and the landlord does
not agree with the new tenant, the tenant can sue in court to be
empowered to place the buyer in his place as the tenant. The
court can only award this claim if the tenant has a substantial
interest in the transfer of the company and the new tenant
offers sufficient guarantees for proper business operations
and proper fulfilment of the tenancy agreement.
d) If you rent a business premise, some insurance policies may
be part of the rental price or service costs. This can, for
example, be the case with a building insurance policy, a glass
insurance policy or an environmental insurance policy. The
rental contract and specifications of the rental price should
be consulted to ascertain which damage claims the tenant is
insured against.
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Netherlands
e) Although contract takeovers are in fact a three-party
arrangement, it is merely necessary for two parties to reach
a written agreement: the party which wants to transfer his
or her legal relationship and the acquiring third party. The
debtor/counterparty of the party who transfers the contract is
required to given consent to the transferal of the contract. In
the case, the tenant has to agree to the takeover if the landlord
Netherlands
wishes to transfer the lease. The landlord should give consent
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
concludes further agreements with the relevant third party or
makes rental payments to the third party and no longer to the
original counterparty.
f) In general, maintenance is on the account of the landlord.
For instance, exterior painting or the maintenance of the roof.
For small repairs the tenant is responsible.
10.4 What taxes are payable on rent either by the landlord
or tenant of a business lease?
As a landlord you can determine, in consultation, with the tenant
whether VAT is calculated along with the rent. As a landlord, you
can for instance, determine the amount of VAT to be paid regarding
maintenance costs through calculating VAT yourself. However, if
the tenant does not have the opportunity to determine VAT in view of
tax already paid, it may be detrimental to the tenant. Tax authorities
therefore provide that VAT on rent can only be paid if the tenant can
deduct 90% (some branches 70%) as tax. If you choose, together
with the landlord, to tax the rent with VAT, then you must ensure
that the following components are included in the rental agreement:
■ that rent is taxed with VAT;
■ from which date the taxed rent commences;
■ a statement that you can deduct the VAT on the rent of the
building by at least 90% as tax;
■ a description of the building with the data from the land
register; and
■ the date on which your financial year starts.
10.5 In what circumstances are business leases usually
terminated (e.g. at expiry, on default, by either party
etc.)? Are there any special provisions allowing a
tenant to extend or renew the lease or for either party
to be compensated by the other for any reason on
termination?
Rental period
A 290-business premise is normally rented for a period of 10 years.
In the lease it is divided into two terms of five years; the second
term is optional for the tenant. If one of the parties does not cancel
the agreement after five years, then the agreement is automatically
extended for another five years. If the agreement not terminated
by one of the parties after 10 years, then it passes into a contract
for an indefinite period. Unless otherwise stipulated in the rental
agreement. This system of five + five years is standard. A term of
two years or less can also be agreed to, just like a contract for a fixed
period of five years or longer.
Cancellation during the first period of five years
After five years, the contract must automatically be extended by
five years. Both the tenant and the landlord cannot cancel after the
first five years. This must be done 12 months before the end of the
period by registered letter or bailiffs writ. If the tenant makes use
of this, the lease agreement always ends. Termination of the rental
agreement before the end of the first five years is not possible unless
the tenant and the landlord agree upon this with each other.
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Cancellation by the landlord
If the landlord is planning to cancel the letting after five years, then he
is obliged to send a registered cancellation letter with the reason for
cancellation. The reason for cancellation must be clearly defined. If
this not the case, then the cancellation is not valid. If the tenant agrees
with the cancellation, then the rent ends after the end of the current
Netherlands
period. If the tenant does not agree, then the landlord must go to the
subdistrict court with the request to terminate the rental agreement.
The rental agreement will continue until the court has decided.
Termination by the subdistrict court
If the tenant does not agree with the termination by the landlord, the
landlord must request the subdistrict court to terminate the rental
agreement by the end of the first five years. The subdistrict court
can only grant this request in two situations, but does not have to
do this, when:
■ the tenant did not act as a good tenant; or
■ the landlord can prove plausibility that he, his spouse, or
children need the rented property urgently and in a lasting
nature.
Termination after five + five years
After the end of the second period – after 10 years – the protection
period has expired. The landlord then has more options to cancel.
Both the tenant and the landlord can cancel the rent. The same
requirements apply as for cancellation at the end of the first five
years. If the tenant disagrees with the rental notice, then he can
again go to the subdistrict court. In several cases the subdistrict
court must rule in the landlord’s favour:
■ the tenant did not act as a good tenant;
■ the landlord can prove plausibility that he, his spouse or
children need the rented premises urgently and in a lasting
nature;
■ the landlord (for instance the municipality) wants to realise
compliance with a valid zoning plan on the business premise;
and
■ the tenant does not accept a reasonable offer for a new
contract (if this does not alter the rent).
Urgent personal use
Lacking other options Landlords tend to cancel the rent by
submitting that they urgently need the building for their own use.
However, they must always be able to demonstrate this. A landlord
cannot simply terminate rental agreements according to lease law
without a legal ground for cancellation.
The strict rules for cancellation apply if one of the parties unilaterally
wants to terminate the agreement. But of course, one can also agree
with the landlord in mutual consultation to terminate the rental
agreement through mutual consent.
It remains possible, if the landlord commits serious breach of
contract (for example, systematically not performing serious
overdue maintenance), or if the tenant commits serious breach of
contract (for example, not paying or systematically paying rent late)
to ask the court to terminate the tenancy agreement. In such a case,
there is no need to wait for the five-year period to end.
10.6 Does the landlord and/or the tenant of a business
lease cease to be liable for their respective
obligations under the lease once they have sold their
interest? Can they be responsible after the sale in
respect of pre-sale non-compliance?
After the sale they can be held liable as well.
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10.7 Green leases seek to impose obligations on
landlords and tenants designed to promote greater
sustainable use of buildings and in the reduction of
the “environmental footprint” of a building. Please
briefly describe any “green obligations” commonly
found in leases stating whether these are clearly
defined, enforceable legal obligations or something
not amounting to enforceable legal obligations (for
example aspirational objectives).
Since 1 January 2015, at the time of purchase, lease and delivery of
residences, a valid energy label is obligatory. Through this label, the
new owner receives information as to the energy efficiency of the
building. This obligation is known to homeowners; this obligation
for business premises is much less prominent, as noticed in practice.
Of course, there are relevant exceptions applicable. Buildings
which are intended for the production or storage of materials and
goods often do not have to be labelled. For buildings with multiple
functions, there is only an obligation to label when a section of the
building used for a purpose exceeds 50 m2. If an industrial hall
accommodates an office of 40m2 for instance, an energy label is not
compulsory. Buildings which are used for agricultural purposes,
protected monuments and temporary buildings that are used for a
maximum of two years are also exempted.
The obligation therefore applies to most buildings. That means that
there is progress to be made about sustainability. Real estate agents
can direct their services with this obligation in mind – especially in
the benefit of sustainability.
10.8 Are there any trends in your market towards more
flexible space for occupiers, such as shared
short-term working spaces (co-working) or shared
residential spaces with greater levels of facilities/
activities for residents (co-living)? If so please provide
examples/details.
This is not applicable.
11 Leases of Residential Premises
11.1 Please briefly describe the main laws that regulate
leases of residential premises.
Title 7.4 DCC arranges lease agreements. A ‘residential space’ is
understood as a constructed immovable thing as far as it has been
leased out as a separate or dependent dwelling. (Article 7:233 DCC.) 
11.2 Do the laws differ if the premises are intended for
multiple different residential occupiers?
A lease of a room is a form of rental of a residential accommodation.
This means that many of the legal rules that apply to the lease of
residential accommodation are fully applicable to the rental of
rooms. However, the legal rules make a distinction between self-
contained and non-self-contained property. Rental of a room often
concerns a non-self-contained property.
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Blenheim
11.3 What would typical provisions for a lease of
residential premises be in your jurisdiction regarding:
(a) length of term; (b) rent increases/controls; (c) the
tenant’s rights to remain in the premises at the end of
the term; and (d) the tenant’s contribution/obligation
to the property “costs” e.g. insurance and repair?
(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
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
distinguished as follows:
■ Rental agreements for housing based on the Vacancy Act.
■ Rental agreements for housing based on article 7: 274 (2)
DCC (diplomatic clause).
■ Rented living space to certain target groups. See article
7: 274a DCC (disability), article 7: 274b DCC, article 7:
274c DCC, article 7: 274d DCC, article 7: 274e DCC, and
article 7: 274f BW (large families).
■ Rental agreements for housing accommodation of a short-
term nature (article 7: 232 (2) BW).
■ The short-term rental agreement for independent living
space of a maximum of two years and non-independent
living space of a maximum of five years (article 7: 271 (1)
DCC).
(B) The rent of your house could be from 3.9% up to 5.4% in
2018. The increase depended on your income in 2016 and
only applies to social housing. In the free sector there is no
maximum to contractual agreed rent increase. Most landlords
increase the rent (once a year) on 1 July using the price index
figure.
(C) The tenant is almost always entitled to rental protection.
Possible co-tenants and sub-tenants are also protected. This
means that a tenant cannot simply be removed from his home,
even if the agreed rental period has expired or the property
has been sold. The landlord must cancel the lease and give a
valid reason to terminate the lease. If he has no valid reason,
but you agree in writing to the cancellation, the contract will
end.
(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
tenant is not responsible for this himself. The tenant is liable
if the damage to the rented property arose because he did not
comply with the obligations from the rental agreement. It
is assumed that all damage to the rented property has been
caused by the tenant, apart from fire damage. The tenant will
then have to prove that the damage was not caused by him.
Only when regarding fire damage is the burden of proof with
the lessor. He will then have to prove that the fire was caused
by a cause attributable to the tenant.
11.4 Would there be rights for a landlord to terminate a
residential lease and what steps would be needed
to achieve vacant possession if the circumstances
existed for the right to be exercised?
The landlord must have a legal reason to be able to cancel the rent,
for example a rent arrear or serious nuisance from the tenant. The
contract must be canceled in writing at least three months in advance.
For every year that the tenant has rented the living space, one month
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.
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Common legal reasons for termination are:
■ Breach of contract of the tenant.
■ Termination of a temporary lease contract.
■ Urgent personal use of the living space.
■ The tenant does not agree with a reasonable adjustment of the
Netherlands
rental contract.
■ Implementation of a valid zoning plan (must be necessary).
12 Public Law Permits and Obligations
12.1 What are the main laws which govern zoning/
permitting and related matters concerning the use,
development and occupation of land? Please briefly
describe them and include environmental laws.
In addition to general administrative law, the following laws apply in
general terms: the environmental management act; the housing law;
the law spatial planning; and the general provisions environmental
law (Wabo).
12.2 Can the state force land owners to sell land to
it? If so please briefly describe including price/
compensation mechanism.
If the government needs your land or building for the public interest,
such as for the construction of a road, it tries to buy it from you. It
allows the value of your land, with any buildings, to be valued. Based
on this valuation, you will receive an offer for full compensation. If
you do not agree and do not agree after negotiation, the government
will start an expropriation procedure.
The Expropriation Act stipulates that you may not be deteriorated by
the expropriation, not in capital or in income. You therefore receive
full compensation for all damage that is the direct and necessary
consequence of the expropriation. The compensation is settled with
any benefits or other allowances such as a planning compensation.
In addition, there is the Municipalities Preferential Rights Act. This
law obliges landowners to sell the land first to the municipality. This
only applies to land where a pre-emptive right is established.
12.3 Which bodies control land/building use and/or
occupation and environmental regulation? How do
buyers obtain reliable information on these matters?
Authorities that monitor the enforcement of environmental
legislation operate mainly at local/municipal level. For information
about this, the buyer can best contact the municipality where the
property is situated.
12.4 What main permits or licences are required for
building works and/or the use of real estate?
In most cases, an environmental permit will be required. Each
municipality then also has its own local regulations. Perhaps the
best known is the General Local Regulation (APV). For example,
the APV often regulates whether and how advertising bars may be
placed. Whether you need, a local permit depends on your plans.
You can contact the municipality with the question of which local
permits you need.
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12.5 Are building/use permits and licences commonly
obtained in your jurisdiction? Can implied permission
be obtained in any way (e.g. by long use)?
Yes. An environmental permit is valid until the work is carried out
Netherlands
or until the permit is withdrawn. This is, for example, if you are not
yet building after a longer period (three years) or if the construction
is stationary for a longer period. The permit is never withdrawn
immediately, you will first receive a resolution to withdraw, giving
you the opportunity to respond. Implied permission may occur if
the authority fail to decide within the legal time timeframe.
It is sometimes possible to obtain a temporary exemption permit
(explicitly tolerated). In addition, there may also be a tolerance
situation (or non-enforcement action) than we speak of an implied
permission.
12.6 What is the typical cost of building/use permits and
the time involved in obtaining them?
The costs vary from approximately 2.5% to 5% of the construction
costs, depending on the level of the construction costs. In the regular
procedure the application period is eight weeks and in the extended
procedure 26 weeks but the delay of the decision period must be taken
in to account. The regular procedure applies to most applications.
12.7 Are there any regulations on the protection of historic
monuments in your jurisdiction? If any, when and how
are they likely to affect the transfer of rights in real
estate or development/change of use?
In general, you will need an environmental permit for every change
to your protected monument. The protected status of a monument
goes beyond the exterior of the building. For example, the interior is
also covered by the protection. It is not that you cannot do anything
with a monumental building, but it does require timely coordination
with your municipality.
You are bound by laws and regulations when you want to modify,
renovate or restore your premises; you almost always must deal with
your municipality, and you need to apply for an environmental permit.
You must consider that a permit process for a monument takes
longer than the route for non-listed buildings.   13.2 Are there any national greenhouse gas emissions
Your building requires specialist care; costs for maintenance and
restoration are often high because of the use of special materials
and techniques.
12.8 How can e.g. a potential buyer obtain reliable
information on contamination and pollution of real
estate? Is there a public register of contaminated land
in your jurisdiction?
Via www.bodemloket.nl you gain insight into information about soil
quality. You will also see where (business) activities have taken
place in the past that deserve extra attention because they may have
influenced the quality of the soil.
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12.9 In what circumstances (if any) is environmental clean-
up ever mandatory?
The soil may be contaminated with hazardous substances.
Contaminated soil locations with health risks must be dealt with as
quickly as possible. In addition, a similar arrangement applies to
asbestos-containing materials.
12.10 Please briefly outline any regulatory requirements
for the assessment and management of the energy
performance of buildings in your jurisdiction.
The  Energy Performance of Buildings Directive  (EPBD) is
the European Union’s main legislative instrument aiming to promote
the improvement of the energy performance of buildings within the
Community. The Netherlands has implemented this directive.
13 Climate Change
13.1 Please briefly explain the nature and extent of any
regulatory measures for reducing carbon dioxide
emissions (including any mandatory emissions
trading scheme).
The Government is taking measures to reduce greenhouse gases.
For example, large companies must have rights to emit CO2, the
most imperative greenhouse gas. Companies must check their
installations for leaks. The Government wants additional measures
to reduce CO2 emissions by 95% by 2050. This is the goal of the
Dutch climate agreement that must be adopted by the end of 2018.
Large companies must pay for CO2 emissions. This is in accordance
with the European system of CO2 emission rights. Large companies
from the industrial sector who emit a lot of CO2 must have rights to
do so. This also applies to large companies in the energy and aviation
sector. One can purchase or sell these right within the European
Union. This is according to the European Emission Trading System
(ETS). Thanks to ETS, large companies can emit 21% less CO2 in
2020 than in 2005.
reduction targets?
The Netherlands aims to emit 30% less greenhouse gases in 2020
than in 1990. In addition to the current measures, the Government
wants more agreements. This is to achieve the goal of the Dutch
Climate agreement: 49% less greenhouse gas emissions in 2030
compared to 1990. By 2050 this must be reduced to 95%.
13.3 Are there any other regulatory measures (not already
mentioned) which aim to improve the sustainability of
both newly constructed and existing buildings?
Roughly 15% of greenhouse gas emission in the Netherlands is the
result of heating and the lighting of homes and buildings. At least
300,000 homes must be more energy-efficient per year. This is an
agreement with organisations in the construction and housing sector.
ICLG TO: REAL ESTATE 2019
Blenheim Netherlands

Mark van Weeren Tim Pruntel

Blenheim Blenheim
Westerdoksdijk 40 Westerdoksdijk 40
1013 AE Amsterdam 1013 AE Amsterdam
Netherlands Netherlands

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
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