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Rights and registration
What types of holding right over real estate are acknowledged by law in your jurisdiction?
Ownership, leasehold, right of superficies, the right of usufruct and apartment rights are all recognised. The contractual rights of rent and lease also give entitlement to real estate holdings.
Are rights to land and buildings on the land legally separable?
Yes, under Dutch law it is possible to prevent accession by creating a right of superficies, which gives ownership rights to a certain building (or part thereof).
Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?
Both individuals and legal entities may hold and exercise rights over real estate. In general, there are no restrictions on foreign ownership of property.
How are rights, encumbrances and other interests over real estate prioritised?
Dutch law has a closed system of rights in rem, which are prioritised by the prior tempore rule: an older right has priority over a younger right. A successor in title will only be confronted with any existing rights in rem, attachments and qualitative obligations.
A successor in title is – in principle – not bound to the contractual obligations of its predecessor as these relate to the property, unless such an obligation is explicitly imposed on it. An example of this is a perpetual clause, which is regularly used in the Netherlands. Another example is that contractual rights are – in principle – not prioritised due to the Dutch principle of equality of creditors.
Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?
Registration in public registers is an essential formality for certain legal acts relating to Dutch real estate. For example, it applies in the event of:
- a transfer and encumbrance of ownership of real estate;
- the establishment, encumbrance and transfer of rights in rem; and
- the conclusion of qualitative obligations.
The public registers have a negative system, while the Land Registry plays a relatively passive role, which means that there is a possibility that information available on the registry and contained in the public registers could be inaccurate or incomplete. In this regard, Dutch law contains several provisions which provide protection against the incompleteness or inaccuracy of information available via the Land Registry or contained in the public registers.
What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?
In real estate transactions, registration will be handled by the civil law notary involved who can also complete the registration electronically. If the required information is received before 3.00pm, the deed will be registered as of that date. Information available via the Land Register is updated every business day.
What information is recorded in the national real estate register(s) and to what extent is such information publicly available?
The public registers for real estate are held at the Land Registry. This information is publicly available to anyone upon payment of a small fee. Information can be obtained via the Land Registry website and delivered by email within a few minutes of the initial request. The public registers contain true copies of (notarial) deeds registered with the Land Registry.
The Land Registry carries the names of the owner, holders of rights in rem, attachments and rights of mortgage and mentions qualitative obligations and restrictions under public law, including references to the relevant (notarial) deeds. Further, it shows the address, area and coordinates.
Is there a state guarantee of title?
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