Assistance with the purchase and sale of real estate

Assistance with the purchase and sale of real estate

The purchase and sale of real estate is not part of daily practice for many. When real estate is sold or bought, real estate law applies. Our team of legal experts and lawyers can provide support during negotiations regarding the property. We can also assist in the event that hidden defects come to light during the purchase or sale. Furthermore, we provide clients with legal advice regarding the statute of limitations on claims. Finally, we can answer questions regarding the establishment of a usufruct or long-term lease.

When involved in a new construction project or having a home built on one's own plot of land, it is important that everything is properly arranged from a legal perspective. For instance, the parties must enter into a purchase/construction agreement or a construction agreement in which the rights and obligations of the parties are stipulated.

Questions regarding the purchase and sale of real estate? Please contact us.

What does real estate law regulate regarding buying and selling?

The purchase and sale of real estate falls under real estate law, which is rooted in Book 7 of the Dutch Civil Code (sales) and Book 5 of the Dutch Civil Code (ownership and property rights). Whether it concerns an international group purchasing a logistics complex or the baker on the corner selling his business premises: in both cases, a real estate transaction involves much more than just the price. Our mixed teams of lawyers and in-house counsel guide you through the entire process, from initial negotiations to the transfer at the notary. This page is part of our broader Real Estate.

The purchase agreement and statutory formal requirements

The purchase agreement establishes the core of the transaction: the purchase price, the delivery date, the condition in which the property is delivered, and the terms agreed upon by the parties. For the purchase of a home by a private individual, a written requirement applies pursuant to Article 7:2 of the Dutch Civil Code; the purchase is only valid when it has been recorded in writing. Furthermore, the private buyer of a home has a statutory cooling-off period of three days. These protective provisions do not apply to commercial real estate and transactions between entrepreneurs, making the content of the purchase agreement all the more important. We draft purchase agreements, review drafts, and ensure that the agreements are comprehensive and balanced.

Resolutive and suspensive conditions

Virtually every purchase agreement includes conditions specifying the circumstances under which a party may withdraw from the purchase. The best-known is the financing clause, which allows the buyer to terminate the purchase if they are unable to secure financing. Other conditions include requirements such as a structural inspection, obtaining a permit, or a positive outcome of the due diligence investigation. A carelessly formulated clause can result in a party being wrongly unable to invoke it, leading to financial loss. We ensure that these conditions are formulated in a watertight manner and that any potential reliance on them is made in a timely and correct manner.

Conformity, duty of disclosure and duty of investigation

A common point of contention is whether the delivered real estate meets what the buyer was entitled to expect under the agreement. This requirement of conformity is laid down in Article 7:17 of the Dutch Civil Code. The seller has a duty to disclose defects known to him, while the buyer has a duty to investigate. The interplay between these two obligations determines who is liable when a defect surfaces after delivery. We advise sellers on what they must disclose, and if you are a buyer, we assess whether you can invoke non-conformity and which age or exoneration clauses limit your position.

Due diligence in commercial real estate

When purchasing commercial properties, building land, transformation projects, and real estate portfolios, a thorough due diligence investigation is virtually standard. This “due care” investigation maps out the legal, financial, and structural risks of the property in advance. From a legal perspective, we examine, among other things, the ownership structure, existing lease agreements and the position of current tenants, easements and restrictive covenants, public law restrictions, compliance with the zoning plan and existing permits, environmental and soil aspects, and any ongoing or impending legal proceedings. We translate the findings into appropriate guarantees and indemnities in the purchase agreement so that you are not faced with any surprises.

Easements, restrictive covenants and real rights

A plot of land may be subject to rights and obligations that remain valid even after the transfer. Easements, such as a right of way, are regulated in Article 5:70 of the Dutch Civil Code. In addition, qualitative obligations, restrictive covenants, or real rights such as leasehold (Article 5:85 of the Dutch Civil Code), building rights (Article 5:101 of the Dutch Civil Code), or usufruct (Article 3:201 of the Dutch Civil Code) may apply. We map out these encumbrances and assess what they mean for the use and value of the real estate.

Delivery at the notary and registration

The legal transfer of ownership of real estate takes place via a notarial deed of transfer, which is registered in the public registers at the Land Registry. Between the purchase agreement and the transfer, the buyer can protect their position by registering the purchase, the so-called Vormerkung pursuant to Article 7:3 of the Dutch Civil Code. This registration protects the buyer for six months against, among other things, a subsequent sale to a third party, attachment, or bankruptcy of the seller. We coordinate the process with the notary and ensure that your interests are safeguarded until the handover of the keys.

Transfer tax and VAT

A real estate transaction involves tax implications that can significantly influence the final costs. In principle, transfer tax is payable upon the acquisition of real estate, whereas the supply of new real estate may be subject to VAT. The choice between a VAT-taxed or a transfer tax-taxed supply, and the interplay between the two, requires careful coordination. Although a tax specialist is involved in this process, we ensure that the tax arrangements are correctly incorporated into the purchase agreement.

Lawyers and in-house counsel, from corporations to the baker on the corner

MKB Juristen works with mixed teams of lawyers and in-house counsel. This means that we provide you with sharp advice as well as litigate on your behalf when a dispute is unavoidable. We assist international corporations with extensive real estate portfolios, but are just as happy to support the local entrepreneur buying or selling their first commercial property. Whether your question concerns a purchase agreement, a hidden defect, a resolutive condition, or the division of a plot of land: we think along with you at the level appropriate to your situation. You can find out more about our full range of services under Real Estate.