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intent providing for an exclusivity period during which the due
diligence exercise is carried-out.
• The concept of pre-contractual good faith should be
considered entering into negotiations.
Sale and Purchase Agreement
• Contains terms and conditions for the sale and purchase
(e.g. price, warranties, guarantees and limitation of liability).
The actual transfer, however, is not effectuated until a
Deed of Transfer is executed and registered with the Land
Registry (see below). This deed will only be executed after all
conditions for the transfer of ownership included in the Sale
and Purchase Agreement have been waived or are fulfilled.
Deed of transfer
• The deed that will be registered with the Land Registry
pursuant to which the ownership of the property is transferred
from the seller to the buyer. The Deed of Transfer is executed
in the Dutch language in front of a civil-law notary in the
Netherlands. The civil-law notary is responsible for registering
the deed with the Land Registry. A Dutch civil-law notary is a
qualified lawyer (often associated with a law firm) and usually
also involved with the drafting of the Sale and Purchase
Agreement (which agreement may be drafted in the Dutch
language or e.g. German, English or any other language).
Combined sales and building contract
(koop-aanneemovereenkomst)
• Used for selling buildings that have not yet been constructed.
The seller is committed to erect the property in accordance
with agreed specifications, price and deadline; the seller
provides the purchaser with completion and defects
guarantees. The purchaser pays the purchase price gradually
along the construction steps until completion.
COMMERCIAL LEASES
Types of commercial leases
• Generally speaking, leases of buildings used for commercial
purposes can be divided into (i) Commercial retail
premises (e.g. stores, restaurants, hotels, cafés, take-away
services); or (ii) Other commercial premises (e.g. offices,
industrial sites and warehouses). The applicable category
is determined by the intended primary use of the property.
Lease agreements for commercial retail premises are subject
to semi-mandatory provisions, which offer the tenant a
considerable degree of legal protection regarding – amongst
other things – the duration and termination of the lease and
the rent level. For the category ‘other commercial premises’
there are no mandatory minimum terms, no mandatory
notice periods and no rent regulations. However, there are
certain mandatory provisions relating to eviction protection
(ontruimingsbescherming) at the end of the lease term.
Commercial retail premises
• The statutory provisions are intended to provide a certain
extent of security of tenure for two terms of five years. When
the tenant gives notice of termination of the lease at the
expiry date of a lease period, the lease will end automatically.
However, if the landlord gives notice of termination, the lease
will continue until the competent court has terminated the
lease (unless of course the tenant agrees to termination).
There are limited statutory grounds for the landlord for
terminating the lease. The notification period must be at least
one year.
• The tenant who wants to sell and transfer its business will
have to seek permission of the landlord to also transfer the
lease. If the landlord does not grant permission, the tenant
can ask the court to make the purchaser of its commercial
business the new tenant. The court can only grant permission
(i) if the tenant has a serious interest in selling its commercial
business, and (ii) if the prospective tenant does offer
sufficient security for the fulfillment of its obligations under
the lease.
• If the current rent does not correspond with the rent of
comparable leased properties in the area, the tenant and/or
the landlord may periodically request the court to determine
the rent. Such a request may be made at the end of a lease
term, or every five years. A market rent review may also lead
to a lower rent.
• The parties to a lease agreement for commercial retail
premises may ask the court to approve contractual provisions
that deviate from the abovementioned mandatory provisions.
Deviations that are not approved by the court are subject to
annulment by the tenant.
Other commercial premises
• No mandatory minimum terms, no mandatory notice periods,
no rent regulations, no assignment of lease regulations.
This category of leases terminates by expiry of the agreed
term or, if no term has been agreed, by termination by one
of the parties. In order to oblige the tenant to vacate the
leased property, the landlord must give a notice of eviction.
The obligation to evict is subsequently suspended for two
months by law as of the date of eviction stated in the notice of
eviction. A tenant is not entitled to a suspension of eviction if
the tenant has given notice of termination of its own accord,
or if the tenant has expressly agreed to termination. Within
the abovementioned two month period, the tenant may
request the court to extend the suspension term. The court
can extend the suspension term to a period of one year, and
the tenant may repeat this request for an extension of the
suspension term two more times. A request for extension of
the suspension term is judged by weighing of interest.
TAX
Direct acquisition of property, RETT
(overdrachtsbelasting) and VAT (BTW)
• The acquisition of property (including the acquisition of
limited real rights and economic ownership) gives rise to real
estate transaction tax (RETT), subject to certain exceptions
being applicable. RETT is levied from the purchaser and
assessed on the purchase price or the market value of the
property, whichever is higher. RETT is, levied at the rate of
6% (or 2% in case of residential property). Under certain
conditions previous paid RETT may effectively be deducted
from the RETT due upon the acquisition of the relevant
property. RETT due must be transferred into the bank account
of the civil-law notary who is instructed to execute the
Deed of Transfer and prior to the execution of such Deed of
Transfer.
• VAT is levied if the property concerns land which can be
considered a building plot for VAT purposes or if it concerns
property which, in short, is under construction or newly
developed (and certain other conditions have been met). VAT
is then due by operation of law and, at a rate of 21%. Provided
certain conditions are met the purchaser should be able to
rely on an exemption for RETT. If VAT is not due by operation
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