I INTRODUCTION TO THE LEGAL FRAMEWORK
i Ownership of real estate
In the Netherlands, most real estate law is incorporated in the Civil Code, which contains laws on entitlement to real estate, use, sale and purchase, transfer and encumbrances. The Civil Code follows the old Roman distinction between rights in rem and rights in personam: rights on property as opposed to personal rights on performance of obligations. In contrast to a personal right, a right on property is absolute as long as it is explicitly recognised as such in the Civil Code; this means that it is enforceable with regard to third parties. The most common absolute rights on real estate are ownership and the limited rights of leasehold, building rights, easements and mortgages (see Section V.iv, below). Common personal rights in respect of real estate are lease, agricultural lease, beneficial ownership and rights derived from a sale and purchase agreement. In general, personal rights cannot be invoked against third parties; however, personal rights can also have absolute characteristics (see Section VI).
Ownership is defined as the most comprehensive property right and the most common title to real estate in the Netherlands. Other property rights, such as leasehold and building rights, are derived from ownership. Leasehold allows the leaseholder to hold and use real estate owned by another party. A building right entitles the holder to ownership of buildings or fixtures in, on or above another party's real estate. Leasehold and building rights can be limited in time, use and transferability, and a periodic fee may be payable to the landowner. Ownership, leasehold and building rights can be divided into apartment rights that may be transferred separately or encumbered with limited rights. An apartment right provides its owner with a share in the entitlement to the divided property and the sole right of use to the apartment. Housing and multifunctional complexes are often divided into apartment rights. In that case, a community of property exists, and an owners' association with compulsory membership is created.
Dutch law draws a distinction between the purchase and the transfer of ownership of real estate. Purchase is understood to mean the legal basis for the transfer of the property and may be created by means of a private instrument (or even orally) and is subject to virtually no mandatory provisions. Purchase agreements generally fall under the remit of regulatory law. The transfer of ownership of real estate or the creation of limited rights only takes place, however, once a notarial deed of transfer of title or creation has been signed in implementation of the purchase agreement or other title, and when such a deed has been registered with the Land Registry Office.
ii System of registration
Real estate is registered in the public registers of the Land Registry Office.
The Land Registry Office has a statutory duty to register the geographical location of real estate in the Netherlands and any limited rights created thereon; this also applies to ships, aircraft and networks. The Land Registry Office registers the names and addresses of titleholders and stores the documents on which such entitlements are based. Attachments and restrictions under public law (see also Section V) are also recorded. The data are accessible to the public and it is also possible to consult them via the Land Registry Office's website.
In cases of transfer of ownership or creation of limited rights, registration of the notarial deed of transfer or creation is required. Such a transfer or creation is complete only once such a registration has taken place. In practice, the civil law notary presents the Land Registry Office with an electronic copy of the deed immediately after signature, and it can be seen almost immediately in the registers that a change to the legal status of the property subject to registration in question has taken place. The details of the registration are updated within a few days. In this way, the land registers are kept very well updated.
The civil law notary who has provided the Land Registry Office with the data is responsible for their accuracy. If the data are correct when provided but are processed incorrectly, then the Land Registry Office is in principle liable for any damage resulting from this. If the civil law notary provides incorrect data, then he or she is in principle liable for this.
iii Choice of law
As indicated above, Dutch law states that the purchase of real estate generally falls under the remit of regulatory law. A purchase agreement that applies to real estate located in the Netherlands may also be governed by foreign law; for example, as a result of the choice of another country's law.
The rules of Dutch private international law designate Dutch law as the law applying to the transfer of real estate located in the Netherlands and the creation of limited rights on it.
II OVERVIEW OF REAL ESTATE ACTIVITY
Investment in the Dutch real estate market has grown substantially in recent years. Volumes for 2014 were €10.1 billion, for 2015 €11.6 billion, for 2016 €13.5 billion, for 2017 €19.5 billion and for 2018 €20 billion.2 The largest transaction in 2018 was the sale of a residential portfolio by NN Group to Vesteda. The deal value was €1.5 billion.3 The largest single asset transaction was the sale of the office building Rivierstaete, located in the South of Amsterdam. Vastint Netherlands sold this building to DWS Grundbesitz for €228 million.4
Because of the low interest rates and confidence in the economy, recent years have shown investor optimism. Real estate is regarded as an attractive investment with stable returns.
Institutional long-term investors appear, primarily, to want to expand in retail and office real estate, especially grade A locations, and residential real estate. Other institutional and non-institutional investors are increasingly often invited to participate in private funds; examples are the ASR Dutch Prime Retail Fund, with a total value of €1.7 billion, and the ASR Dutch Core Residential Fund, with a total value of €1.4 billion.5 Residential property, along with logistics and hotels, are the asset classes being viewed as a solid investment with acceptable direct returns.
III FOREIGN INVESTMENT
Where entitlement to immovable property is concerned, the law makes no distinction between Dutch and foreign investors. There are no restrictions that apply to foreigners that do not apply to Dutch participants. Similarly, with regard to investment regulations and the tax aspects of real estate transactions, Dutch and foreign actors are in principle treated equally.
American, British and German parties are well represented in the Dutch real estate market. In recent years, the importance of investors from emerging countries has increased.
IV STRUCTURING THE INVESTMENT
A real estate investment, either as a direct or indirect acquisition, can be structured in many different ways. Amendments to law and regulations regularly result in new structures or in variations on existing structures. Obviously, specific investors' legal, financial, organisational and tax planning are also taken into account when structuring the investment.
The private company with limited liability (BV) and the limited liability company (NV) have legal personality, are incorporated by a notarial deed and have a share capital divided into shares held by one or more shareholders. The shareholders in a BV or NV are not personally liable for acts performed in the name of the company; nor are they liable for contributing to losses of the company in excess of the amount that must be paid up on their shares. Different voting, dividend or liquidation rights between shareholders can be created by the issue of preference shares or separate classes of shares. The BV's articles of association may limit or exclude certain shares from sharing in the profits. Certain shares may also be excluded from voting.
The main differences between BVs and NVs are as follows:
- the shares in an NV are in bearer or registered form; the shares in a BV are in registered form only;
- the minimum authorised, issued and paid-up capital of an NV is €45,000; a BV has no minimum capital; and
- Dutch law offers a lot of flexibility to arrange for a fully tailor-made set of BV articles of association.
The BV and NV are subject to Dutch corporate income tax and distributions are, in principle, subject to Dutch dividend withholding tax.
ii Limited partnership (CV)
A CV is an entity without legal personality, entered into by an agreement between one or more general partners and one or more limited partners as investors. The general partners act on behalf of the CV, hold legal title to the real estate assets and are severally liable for the CV's obligations. The limited partners are only liable for the amount of their capital contributions, pursuant to the partnership agreement. However, if a limited partner acts in the name of the CV or has a decisive influence on the performance of the general partner (or partners), the limited partner also becomes severally liable.
Because the CV has no legal personality, its assets are usually owned by the general partners. However, the assets can also be owned by the general partner, or partners, and the limited partners together or by the limited partners jointly. The partnership agreement can provide that a partner may transfer its interest in the CV to a third party, subject to such approvals, consents and other requirements as the partnership agreement sets forth. The partnership agreement can be a private instrument and does not have to be in a notarial form. Another benefit of the CV is that it does not have any minimum capital requirements. A limited partnership is a popular investment vehicle, because it can be established as transparent for Dutch tax purposes. In that case, the CV itself is not subject to corporate income tax and dividend withholding tax in the Netherlands; for tax purposes, all assets and liabilities are attributed directly to the general and limited partners and will be taxed at this level. A non-transparent CV is subject to corporate income tax and dividend withholding tax (at fund level). In short, a CV will be considered transparent for Dutch tax purposes if the accession or replacement of a limited partner requires prior consent of all other limited partners.
iii Fund for joint account (FGR)
The FGR is often used as an investment vehicle. An FGR does not have legal personality; it is an agreement governing the relationship between the manager, the depositary and an individual investor. This agreement is often referred to as the terms and conditions, and deals with the management and custody of the fund. The terms and conditions often provide that an investor is not liable towards third parties and that its (internal) liability is limited to the amount that it has agreed to contribute.
Dutch civil law does not specifically provide for FGRs. This allows great flexibility in how the terms and conditions are drawn up, and this flexibility makes an FGR a suitable vehicle for real estate investment funds.
For Dutch tax purposes, an FGR can be established either as transparent or non-transparent. A transparent FGR is not subject to corporate income tax and dividend withholding tax; for tax purposes, all assets and liabilities are attributed directly to the investors and will be taxed at this level. A non-transparent FGR is subject to corporate income tax and dividend withholding tax (at fund level). In short, an FGR will be considered transparent for Dutch tax purposes if units in the FGR are transferable only with the consent of all investors or if units in the FGR are only transferable to the FGR by way of redemption of units (in which case no prior consent of all participants is required).
iv Cooperative (coop)
The coop is an association incorporated by a notarial deed. The coop must provide for certain tangible needs of its members, specified in its articles of association. The activities of the coop should have a certain relevance to the activities of the members themselves. This can be the case if a coop invests funds received from members that are themselves also active as investors. Distributions by a coop are in principle subject to Dutch dividend withholding tax. Subject to certain conditions, distributions made by a coop directly investing in real estate could be structured in a way so that they are not subject to dividend withholding tax, and no corporate and personal income tax will be levied on the coop's non-Dutch resident members in respect of income derived from their membership interest in the coop.
v Fiscal investment institution (FBI)
The NV, BV and a non-transparent FGR can be structured as an FBI. An FBI is subject to corporate income tax, but at a zero rate. To qualify as an FBI, certain requirements must be met, including restrictions on leverage, shareholders and members of the management board.
V REAL ESTATE OWNERSHIP
An owner's rights to the use of immovable property are regulated by the Spatial Planning Act and the Environmental Permitting (General Provisions) Act. The zoning plan is a central element in the Spatial Planning Act. This plan is drafted by the municipal authorities and designates the purpose for the land (housing, offices, retail, agricultural use, public space, etc.). In addition, the zoning plan sets out the rules regarding the use of the land and the immovable property situated on it. Permits concerning the construction of immovable property can be issued if the intended use is in keeping with the zoning plan. An exemption is the permit for 'spatial planning for contrary use', which provides flexibility to municipalities. Enforcement measures are available in the event of failure to comply with the prescribed use of the zoning plan or the permit for spatial planning for contrary use.
Should a landowner desire to construct immovable property, convert existing immovable property or carry out activities harmful to the environment, a permit is required. On the grounds of the Environmental Permitting (General Provisions) Act, a single permit can be requested that is sufficient for all activities of the landowner's project. This is known as the single environmental permit. A large number of permits, exemptions and notifications (around 25) are integrated into this single environmental permit.
Liability for soil pollution is regulated under the Soil Protection Act. This is based on the polluter pays principle. When it is not or is no longer possible to identify the polluter, the owner is in principle held liable. The owner may also be held liable if the pollution spreads or if others suffer damage as a consequence of exposure to it. The government can force polluters or owners to clean up by ordering them to do so. If this is not possible, the government itself takes on the responsibility for remediation. In summary, the general order of liability is polluter, owner then government.
The strict liability of the owner or leaseholder of a business park reaches further than the strict liability with regard to other properties. The owner or leaseholder of a business park is obliged to clean up after the occurrence of serious soil pollution for which a need of remediation has been established, regardless of whether the pollution was caused by the owner or the leaseholder. The obligation to remediate the soil lies with the owner or leaseholder of the business park in which the source of the pollution is located. For business parks, the polluter pays principle also applies.
Pursuant to the Real Estate Transfer Tax Act, real estate transfer tax (RETT) is in principle levied upon the acquisition of immovable property located in the Netherlands. The same applies to rights to which immovable property is subject, such as leasehold or building rights. The term 'acquisition' includes the acquisition of beneficial ownership. The rate for residential properties is 2 per cent and the rate for other immovable properties is 6 per cent.
The acquisition of shares in a company holding Dutch real estate could also be subject to RETT if each of the following conditions are satisfied (cumulatively):
- the purchaser, together with related entities, acquires or increases an interest of a one third or more in the company;
- upon the acquisition or at any time during the preceding year, the assets of the target comprise, determined on the basis of the fair market value (1) for more than 50 per cent foreign or Dutch real estate and (2) for 30 per cent or more Dutch real estate including shares in Dutch real estate companies; and
- the real estate companies are fully or primarily (70 per cent or more) used for real estate trading or exploitation activities.
If applicable, the RETT will be levied on the higher of (1) the value of the real estate assets (i.e., without deducting any debts whatsoever) and (2) the purchase price.
The Real Estate Transfer Tax Act contains several exemptions concerning, inter alia, an acquisition resulting from merger and divestment, transfers between group companies and the acquisition of networks. Furthermore, an exemption from RETT applies to the acquisition of newly constructed immovable property or building land in respect of which VAT is due.
The delivery of possession of immovable property is in principle exempt from VAT, unless it concerns the delivery of possession of new immovable property taking place before or within two years after the date of first occupation; or the delivery of possession of building land. In principle, these forms of delivery of possession have a 21 per cent VAT imposed on them.
iv Finance and security
Immovable property may be encumbered with a mortgage. A mortgage is a limited security interest intended to provide recourse against the immovable property for a claim for payment of a sum of money, with preference over other lenders. The financing of immovable property with a mortgage as security interest for the financier is customary with regard to the immovable property of both private individuals and businesses. A mortgage right is created by a notarial deed recorded in the public registers.
A mortgage right has three important characteristics. First, it is an absolute right that may be invoked against any other party. Should a mortgagor dispose of any immovable property, the mortgage right on the immovable property remains. Because the mortgage right is evident from the public registers, there is no room for protection for a third party. Second, the mortgagee has the right to summary execution. If the mortgagor defaults in the settlement of that for which the mortgage serves as guarantee, the mortgagee is entitled to sell the immovable property. Third, should the mortgagor go into liquidation, the mortgagee is a secured creditor. The mortgagee can exercise its right as though there were no liquidation.
The procedure regarding the foreclosure by the mortgagee contains safeguards to prevent abuse of the right to summary execution and to maximise the proceeds in the interest of the mortgagor and any other lenders. In principle, the foreclosure must take place in the form of a public auction in the presence of a civil law notary. At the request of the mortgagee or the mortgagor and with court approval, a private sale under execution may also be held. Sale under execution of immovable property is possible via the internet. This makes the sale under execution accessible to the wider public and aims to generate higher execution proceeds.
The mortgage right depends on the claim that the mortgage serves to guarantee. Should this claim be transferred, the acquirer also acquires the security interest pertaining to it. Another consequence of the mortgage right's dependent character is that the right is extinguished once the claim is settled. Bank mortgages are an exception to this rule. A bank mortgage involves the granting of security on all claims that the mortgagee has in respect of the mortgagor either now or at any time and for whatever reason. Therefore, it may even be created prior to the mortgagee having a claim against the mortgagor.
As well as being created on the debts of the mortgagor, a mortgage may also be created on the debts of third parties. Such cases are referred to as third-party mortgages; the owner and not the borrower is then the mortgagor. Group company financing often involves third-party mortgages. A bank extends a credit facility to the parent company, on the basis of which a mortgage on the immovable property of the operating companies is provided as security.
Normally the mortgagee is also the financier. If a banking syndicate performs as financier, it is not practical that all the banks become mortgagees considering the foreclosure process. By means of a parallel debt structure, an agent may be appointed as mortgagee, who the parties agree has an equal claim to those of the combined banks. Such a structure is not contrary to the dependent character of the mortgage right.
VI LEASES OF BUSINESS PREMISES
Tenancy law makes a distinction between two types of business premises: retail premises and other business premises. Lease of retail premises covers, inter alia, use of the immovable property for retail trading, as well as its use as a hotel, restaurant, café or craft workshop. The premises must include a space accessible to the public for the direct supply of movable goods or services. The regime for retail premises is intended to offer protection to the lessee by means of (semi)mandatory provisions because of the location specificity of the lessee's business. The other business premises category is a residual one. This regime covers all built immovable property that is not leased as retail premises or housing. The other business premises category is very broad; for example, it includes offices, parking space, factory buildings, storage space and warehouses. The lessees of other business premises receive only limited protection from the law. In this category, parties have as much freedom in defining the terms of a lease as they see fit.
Business premises leases are customarily drafted in conformity with the Real Estate Council of the Netherlands models. These models, including an extensive set of general conditions, are the commonly used standard leases for business premises in the Netherlands and are generally lessor-friendly. Among other things, the models concern the term, rent, rent indexation, lessee liability, limitation of lessor liability and security aspects.
i Retail premises
General leasing regulations apply to the retail premises category. In addition, (semi)mandatory provisions apply, including those concerning the lease and notice periods.
The underlying principle of the retail premises regime is that the period of the lease must be at least 10 years. In practice, leases are often concluded for five years with the possibility of extension for an additional five years. Even when no second five-year period is agreed, the lease is extended by five years by operation of law. The underlying idea is that 10 years is sufficient for the investments made by the lessee to be recouped. Should the lease be for a specified period, notice may be given towards the end of that period. Should the lease be for an indefinite period, then notice may be given at any time, provided the duration of the lease has been at least 10 years, and the notice period must be at least one year. Notice given by the lessor terminates the lease only if the lessee agrees to the termination or the lease end date is fixed irrevocably by the court at the petition of the lessor. The lessor can give notice with effect on the expiry date of the retail lease on the following grounds:
- the lessor urgently needs the leased property for its own use (including use as business premises of a different kind or renovation of the leased property that cannot be carried out without termination of the lease);
- the manner in which the lessee operates its business does not befit a good lessee;
- the lessor desires the realisation of the leased property's purpose as designated in a valid zoning plan;
- the lessee does not agree to a reasonable offer to enter into a new lease that does not include any change to the rent; or
- the lessor's interest in termination weighs more heavily than that of the lessee in continuation of the lease.6
The aforementioned termination grounds are without prejudice to the right of the lessor to (prematurely) terminate a lease in the event of a default by the lessee, for example, non-payment of rent. Rent in arrears equalling at least three months – and this applies to both types of business premises as well as residential premises – is generally considered to be sufficient to enforce dissolution of the lease, which can only be effectuated through a court order.
ii Other business premises
General leasing regulations apply to the other business premises category. Aside from these, considerable contractual freedom exists. No mandatory provisions with regard to lease and notice periods, etc., apply to these types of business premises.
The only mandatory protection the lessee enjoys is that against eviction. Should notice ending the lease be given, notice of eviction must also be given expressly. Should the lessee not agree to the termination of the lease, the lessee's obligation to vacate is suspended by operation of law for two months as from the date of eviction specified in the notice of termination. During these two months, the lessee can apply to the court to have the period of suspension extended. Extension by a period of up to one year is possible. The lessee may repeat such an application twice, so that suspension of the obligation to vacate can be extended by a maximum of three years (three times one year). In the assessment of the applications for extension (and in the absence of any misconduct by the lessee), a balancing of interests is made.
There is no possibility of appealing the court's decision on an application for extension. During the period in which the obligation to vacate has been deferred, the rights and obligations of the parties continue to apply. The compensation the lessee must pay to the lessor is in principle the same as the rent that applied on the date that notice of eviction was given; however, should one of the parties so request, the court will fix the compensation that the (former) lessee is to pay during the extension period to come. The court sets that compensation at an amount that is reasonable when compared with other rents in the locality.
VII DEVELOPMENTS IN PRACTICE
i Public–private partnerships (PPPs)
Large and complex infrastructure projects (such as wind farms and motorways) are increasingly often being realised through PPPs. As the commissioning party in this context, the government does not set out in detail the manner in which these projects are to be realised but limits assignment descriptions to their fundamental aspects; the private sector then has considerable freedom in realising the project on its own terms. In this way, the government makes use of the market's capacity to innovate. The most common form of PPP is the DBFMO (design, build, finance, maintain and operate) contract. Recently, PPPs have been structured in a way that better facilitates financing by institutional investors.
According to Dutch law, a network of one or more cables or pipes constitutes individual immovable property. The owner of a network is its authorised constructor or the legal successor. Transfer or encumbrance of a network is only possible following registration thereof in the public registers. Registration of a network is done by means of a notarial register certificate, in which the civil law notary states that the ownership of the network has been demonstrated sufficiently. For this to happen, the civil law notary needs to make enquiries concerning the authority of the stated owner to construct the network. In practice, it appears virtually impossible for network companies to prove the authority to construct in relation to some older networks. In these cases, no registration can be made, as a result of which, transfer and encumbrance are not possible. To accommodate network owners, transitional legislation came into effect in 2010. On the basis thereof, those who acted as network owners on 1 February 2007 may proceed with the registration of such networks in the public registers, and subsequently with publication of the registration, and finally the transfer and encumbrance of the network. Following publication of the registration, an expiry period of one year commences, during which third parties who consider themselves a network's rightful owner may contest the registration at law. This legislation calls for various types of action to secure claims of these very valuable assets.
As a result of the economic situation in the past, there has been a significant amount of work in the field of restructuring. Foreign investors have shown interest in real estate portfolios with a value below the amount of the raised loans.
iv Energy label
As of 1 January 2015, sellers and lessors of real estate are obliged to provide purchasers and lessees respectively with an energy label (with categories A to G, A being the most energy-efficient). This label shows whether the real estate is energy efficient and which energy-saving measures are possible. Non-compliance with this obligation is subject to a fine. As of 2023, office buildings with an energy label category D and higher may no longer be used. The legislator has announced legislation that prohibits the use of office buildings with an energy label category B and higher as of 2030.
v Park management
Professional land management in the form of park management is being seen increasingly often in the Netherlands. Because of high land prices and a shortage of opportunities for expansion, the intensive use of space has become a basic principle. Business parks increasingly combine functions to include activities such as sport and dance schools alongside commercial activities. Properly functioning park management is increasingly being seen as necessary for the smooth running of multifunctional premises. In setting up the management of a park, it is generally assumed that optimised park management can only be achieved if it has a foundation in mandatory law. This means that 'free riding' must not be possible and that the legal successors of the various right holders in the business park are bound to the park management's rules. In the Netherlands, a link is generally made here between a property law construction – such as a division in apartment rights (see also Section I) or the creation of easements – and the membership of a managing legal entity. In this regard, there seems to be a preference for management associations, as these have a consultative structure based in law.
vi Business Improvement Zones Act
On 1 January 2015, the Business Improvement Zones Act entered into force. This Act intends to permanently enable the establishment of business improvement zones (BIZ), following on from the Business Improvement Zones Experiments Act. With this bill, municipalities will be able to designate an area with retail or other business premises as a BIZ. In this BIZ, an area-based levy (BIZ contribution) will be established. This levy will be collected by the municipality and aims to finance facilities chosen by a majority of entrepreneurs who are obliged to contribute. These facilities will serve both the joint interest of the entrepreneurs and the public interest.
The revenues from the levy will be distributed in the form of a subsidy by the municipality to an association or foundation established by entrepreneurs in the BIZ. This subsidy will pay for activities in the public areas of the BIZ aimed at enhancing living conditions, safety, spatial quality or economic development.
vii Lessor Levy Act
The legislature introduced a levy for lessors who lease more than 50 homes in the controlled rents sector (homes with a net monthly rent up to €720.42 – the applicable amount for 2019).
According to the Lessor Levy Act, the lessor must pay a certain percentage over the value of the homes owned in the regulated lease sector. The value per home is subject to a maximum of €270,000. The Lessor Levy Act has wide-ranging implications for lessors in the regulated lease sector and has been criticised on several grounds (e.g., financial and administrative consequences for lessors). Lessors can apply for a reduction in the levy if they invest in urgent social purposes, such as transformation from office buildings to residential buildings and demolition of homes in shrinking areas. Nationally listed buildings are exempted from the levy.
VIII OUTLOOK AND CONCLUSIONS
Dutch law regarding immovable property is stable and characterised by considerable legal certainty. The land registration system is of a high standard and offers transparency regarding the ownership of immovable property to anyone that is entitled to it under a limited right such as building or leasehold rights, and who has been granted mortgage rights as security. A variety of investment vehicles are available to facilitate joint investment. As a consequence, tax, legal, financial and organisational arrangements can be tailored to any given situation. Tenancy law provides well-balanced rules for two types of business premises. For hotels as well as small, location-specific businesses, the necessary protection is offered, while for the leasing of office premises and factories, parties have considerable freedom to define their mutual relationships as they see fit. Immovable property in the Netherlands, therefore, constitutes an attractive object of investment for investors striving for a stable investment in the long term.
1 Max van Drunen is a legal director, Leen van der Marel is a partner and Kirsy Corten is an associate at DLA Piper Nederland NV.
2 CBRE, The Netherlands Real Estate Market Outlook 2019, page 9.
3 CBRE, The Netherlands Real Estate Market Outlook 2019, page 9.
4 Het Parool, 12 December 2018.
6 This termination ground only applies after an expiry period of at least 10 years.