Investor Guide to Europe 2014
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TYPES of oWnERSHIP
Î
freehold / full ownership
(volle eigendom)
•
The Dutch Civil Code defines ownership as the most compre-
hensive and complete right a person or legal entity can have
in relation to,
inter alia
, real estate. The transfer of ownership
requires the execution of a deed in front of a civil-law notary in
the Netherlands and the subsequent registration of this deed
with the Land Registry (
Kadaster
).
•
If a property is owned by more than one person this is referred
to as co-ownership or community of property.
Î
apartment rights
(appartementsrechten)
•
The division of property into apartment rights is a specific form
of (co-)ownership by various persons of a property or a group
of properties. An apartment right entitles the holder thereof to
the exclusive use of a certain part of a property and the joint
ownership, with the other apartment owners, of that property.
•
Division into apartment rights requires the execution of a deed
in front of a civil-law notary in the Netherlands and registration
thereof with the Land Registry. The deed describes the areas
that are designated for exclusive use only and the common
areas (such as elevators, roof and foundation of the pro-
perty). The deed includes the terms of use and the rights and
obligations of the apartment owners. Transfer of and use of an
apartment right may be limited in the deed. Some urban areas
require a property division permit from the municipality. Upon
the acquisition of an apartment right the apartment owner
becomes a member of the owners association by operation of
law. The owners association is responsible for,
inter alia
, main-
tenance of the common areas.
Î
Economic ownership
•
Economic ownership is a contractual arrangement and does
not constitute a right in rem. Economic ownership is not
strictly defined under Dutch contractual law or real estate law.
However, for tax purposes economic ownership is defined as,
inter alia
, a combination of contractual rights and obligations
pertaining to the property comprising of a contractual interest
in such property which interest at least includes some form of
risk of depreciation of value of that property.
Î
Ground lease
(recht van erfpacht)
•
Ground lease is the right (in rem) to hold and use somebody
else’s property under the terms and conditions included in the
deed of ground lease. A ground lease is established through
the execution of a deed in front of a civil-law notary in the
Netherlands and the registration thereof with the Land Re-
gistry. The terms and conditions included in the deed address
the allowed usage, duration of the ground lease, payment of
ground lease payments (
erfpachtcanon
), termination etc.
Î
Right of superficies
(recht van opstal)
•
A right of superficies is the right (in rem) to own or acquire
buildings, works or plants in, on or above the immovable
property of another person. A right of superficies is esta-
blished through the execution of a deed in front of a civil-law
notary in the Netherlands and the registration thereof with the
Land Registry. The terms and conditions included in the deed
address the allowed usage, duration of the right of superficies,
payment of a retribution (
retributie
), termination etc.
RIGHTS affECTInG oWnERSHIP
Î
Easement
(erfdienstbaarheid)
•
An easement is a right (in rem) which encumbers an immo-
vable property in favour of another immovable property for
the use and utility of that property. An easement is established
through the execution of a deed in front of a civil-law notary
in the Netherlands and the registration thereof with the Land
Registry. An easement can also come into existence through
acquisitive prescription.
Î
Mortgage
(hypotheek)
•
A right of mortgage is a right (in rem) which provides secu-
rity for the due performance of a monetary obligation by the
debtor (i.e. the payment of a sum of money) and provides the
mortgagee the right to publicly sell the mortgaged property in
case of a default in the secured obligations. A right of mor-
tgage provides for a preferential right over other creditors in
the event of bankruptcy or forced sale of the relevant property.
A right of mortgage is created through the execution of a deed
in front of a civil-law notary and the registration thereof with
the Land Registry.
Î
an obligation attached to a certain capacity
(kwalitatieve verplichting)
•
An obligation (pertaining to the ownership of property) to
refrain from certain acts in relation to a certain property and/
or allow a third party to perform certain acts with respect to
that property can be laid down in a deed executed in front of
a civil-law notary which is registered with the Land Registry.
Subsequent owners must adhere to these obligations / respect
such third party rights.
Î
Municipality preferential right
(voorkeursrecht
Gemeente)
•
A Municipality may designate a certain area as a so-called
preferential right’s zone. Any property located in such zone
must be offered for sale to the Municipality first before it can
be transferred to a third party. A transfer without the approval
of the Municipality is null and void.
aCQuISITIon PRoCESS:
KEY STaGES
Foreign investors wishing to carry out real estate transactions in
principle do not need any prior authorisation. Prior to or during
due diligence and/or negotiations it should be considered whether
the transaction should be executed as a share deal or an asset
deal (also see below under Tax).
PRoPERTY LaW
