ILN: BUYING AND SELLING REAL ESTATE - AN INTERNATIONAL GUIDE

[BUYING AND SELLING REAL ESTATE IN THE NETHERLANDS]

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constructions and structures in, on or above a third party's immovable property. A second difference between leasehold and the right of superficies is that leasehold is an independent right while the right of superficies may be an independent right or a right dependent on another agreement between the owner and the holder, such as a lease agreement. In such case ending of the lease agreement would mean the end of the right of superficies. The rights and obligations of the holder of the right of superficies are generally limited by law and can be specifically limited by the conditions which are concluded between the owner and the right's holder, equal to leasehold conditions. An independent right of superficies can be transferred and encumbered by a limited right in rem such as mortgage. Since the dependent right of superficies depends on another agreement, such right cannot be transferred nor be encumbered with a limited right in rem. The right of superficies is widely used for pipelines, cable networks and other valuable structures or equipment. The property right, leasehold, apartment right and right of superficies can all be leased to a third party. Nonregistered immovable property rights (economic ownership) Economic ownership can be defined as the separation of full ownership in legal ownership and economic ownership. It is based on obligations between involved parties by means of contracting. The economic owner is usually entitled to the value and profits of the real estate. The legal owner is registered at the Land Registry but does not necessarily hold any economic or financial interest of the real estate.

For third parties only the legal owner is known due to registration. The role of Dutch civil-law notaries in immovable property transactions, payment procedure and the Public Registers Under Dutch law a notarial deed is compulsory in order to transfer title to immovable property or to establish limited rights in rem, such as a mortgage. Notarial deeds are conclusive proof of the transactions laid down therein. Dutch civil-law notaries are impartial legal professionals appointed by the Government. In his capacity the civil-law notary must consider the interests of all parties involved in a transaction regardless of who pays the notary's fee. Also, in general, the interests of third parties who are affected by a transaction must be considered. The civil-law notary advises the parties and oversees the transaction. The notarial deed containing the transfer of ownership or the establishment of the limited right in rem are recorded by the notary with the designated Public Registers, kept by the Land Registry "Kadaster"), by way of filing a certified copy (or an excerpt) of the deed. These Public Registers are accessible for everyone. The civil-law notary is the custodian of the original deed and therefore it remains with the notary. Parties entitled to it will receive a certified copy or, when required, an authenticated copy. In an immovable property transaction, the purchase price (or secured loan amount) must be deposited with the (impartial) civil-law notary prior to the closing of the transaction. This has the meaning that at the time of the transfer of ownership of the transaction, the purchase price is in place but out of the hands of the Buyer and Seller alike. After the transfer of ownership has been completed (by way of recording the deed of transfer in the

ILN Real Estate Group – Buying and Selling Real Estate Series

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