Building

Building

The right of superficies is the right to own a building on a piece of land belonging to another owner. Without the right of superficies, the landowner would become the owner of the building by accession. The right of superficies is often established in combination with leasehold. Do you have any questions about the right of superficies?

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of the law of superficies. Contact us to discuss the possibilities.

What is the right of superficies according to the law?

The right of superficies is defined in Article 5:101 of the Dutch Civil Code as a real right to own or acquire buildings, works, or plantings in, on, or above the immovable property of another. In doing so, the right of superficies breaks the main rule of accession: normally, the landowner automatically becomes the owner of everything permanently attached to the land through accession. The right of superficies makes it possible for the holder of the right of superficies to remain the legal owner of, for example, a building, a pipeline network, or a solar park, while another party holds the ownership of the land.

According to Article 5:101, paragraph 2 of the Dutch Civil Code, a right of superficies may be granted independently, or dependent on another real right or on a right of lease or tenancy to the immovable property. In the deed of establishment, a fee may be imposed on the holder of the right of superficies pursuant to Article 5:101, paragraph 3 of the Dutch Civil Code: a sum of money payable to the landowner, whether recurring periodically or not. This applies both to an international energy company developing a wind farm and to the baker on the corner who wants to place a conservatory or awning on someone else's land.

Right of superficies or leasehold: what is the difference?

Surface rights and leasehold are often mentioned in the same breath and frequently combined, but they are distinct rights. Leasehold (Article 5:85 of the Dutch Civil Code) grants the right to hold and use another's land; the leaseholder does not automatically become the owner of what he builds through accession, unless a surface right is established in addition. The surface right specifically regulates the ownership of the structure itself and breaks the principle of accession. In practice, a surface right is therefore often established dependently on top of a leasehold or tenancy right, so that the user secures both the use of the land and the ownership of the building. A tailored approach is required for the correct structure; our lawyers and in-house counsel will assess which form suits your situation.

How is a right of superficies established?

A right of superficies cannot be established solely by private agreement. Establishment requires a notarial deed, followed by registration in the public registers (Land Registry). In this deed, the grantor of the superficies and the holder of the superficies record their agreements: the duration of the right, any applicable fees, maintenance obligations, termination conditions, and the consequences upon termination. A carefully drafted deed of establishment prevents future disputes. We draft deeds of establishment and review draft deeds from the notary, ensuring that your interests—whether you are the grantor of the superficies or the holder of the superficies—are properly safeguarded.

Termination of the right of superficies and compensation

A right of superficies can terminate in various ways, including the expiration of the agreed term, termination, or relinquishment. By virtue of Article 5:104 of the Dutch Civil Code, many provisions of the Dutch leasehold law apply by analogy to the right of superficies. For instance, the landowner can, in principle, only terminate the right if the holder of the right of superficies has failed to pay the dues for two consecutive years or is in serious default of other obligations (Article 5:87 paragraph 2 of the Dutch Civil Code). Upon termination of the right, ownership of the structures reverts to the landowner by accession.

The position of the holder of the right of superficies is not without merit in this regard. Pursuant to Article 5:105 of the Dutch Civil Code, the former holder of the right of superficies has a right of removal regarding his buildings, structures, and plantings. If he chooses not to exercise this right, he may—in accordance with Article 5:99 of the Dutch Civil Code—claim compensation for the value of the structures. Moreover, in the event of an unjustified or unreasonable termination, reliance may be placed on the principles of reasonableness and fairness or on abuse of rights. We assist both grantors of the right of superficies and holders of the right of superficies in negotiations and proceedings regarding termination and compensation.

Common building issues in practice

The right of superficies plays a role in a wide range of situations. We advise on and litigate regarding, among other things:
– Rights of superficies for solar panels and solar parks on the roofs or land of third parties.
– Cables, pipelines, and networks of utility and telecom companies on land owned by others.
– Wind turbines and other energy infrastructure, often combined with long-term leasehold.
– Rights of superficies for advertising masts, antennas, charging infrastructure, and commercial buildings.
– Disputes concerning fees, maintenance, termination, and compensation upon the end of the right.

Whether it concerns an international group contracting dozens of locations or a local entrepreneur with a single property: our mixed team of lawyers and in-house counsel helps determine the best structure and represents your interests should a dispute arise.

Building rights within property law

The right of superficies is one of the limited real rights within Property Law. It is closely related to subjects such as ownership and accession, leasehold, easements, and the transfer and delivery of registered immovable property. A sound understanding of this interrelationship is essential for properly establishing, managing, and, if necessary, terminating rights of superficies. Do you have a question about a right of superficies or a broader property law issue? Please feel free to contact us to discuss the possibilities.