Conflicts with a building contractor

Hiring an inaccurate building contractor can cause a lot of issues. This blog will inform you on what to do when conflicts with a building contractor arise. In general, the contractor has a duty to heed any orders and directions issued by or on behalf of his client. He has to carry out the work properly and thoroughly in accordance with the provisions of the agreement in question. Additionally, the contractor is liable for any damage he inflicts on a client’s other works and property. He is liable for all damage caused by the execution of work and attributable to negligence. However, carelessness or improper conduct on the part of the contractor also falls under this liability. Including the damage caused by the contractor’s staff, subcontractors or suppliers.

Whether the contractor fails to fulfill his contractual obligations, strongly depends on the specific circumstances of the case. First, it needs to be clear on what work(s) the parties have agreed. The offer, final agreement and further correspondence provide a frame work to give more clarity on this subject. Secondly, there will need to be proof of the defect itself. Again, this strongly depends on the agreements regarding the quality, time frame, and quantity of the works.

Notice of default and conversion statement

In most cases, the contractor has the right to correct his errors. This is because an agreement cannot be terminated easily under Dutch law. Therefore, the client needs to call the contractor to account as soon as possible and give him a deadline in writing to perform properly or to correct the defect. This is called a notice of default. If the contractor does not comply within the set (reasonable) time, he runs a great risk.

Depending on the seriousness and scope of the breach, the client has multiple options, such as (partial) termination, suspending his obligation to pay, or opting for a conversion statement (in Dutch: ‘omzettingsverklaring’). With such a declaration, the client can convert the obligation to perform into an obligation to pay compensation. The contractor can then no longer perform the contract, and is obligated to compensate the client for the damages; in most cases the costs of hiring a third party to finish the works. Once a conversion notice has been sent, the client cannot rescind the contract.

Risks


Please note that short delays or minor defects do not justify termination or making a conversion statement. If the client acts unduly expeditiously, he could actually be the one failing his contractual obligations by not paying the agreed sum or refusing the contractor to finish the works. This makes the contractor the party who may terminate the contract.

Summarizing, it is very important for the client to take all necessary steps in a well-considered way, since you cannot easily undo your (legal) actions. Therefore, we advise you to let an independent building contractor or building engineer review the works, since their reports can be crucial for rightfully taking the necessary legal steps. After this, a lawyer can assist you in taking the next steps, depending on the nature and seriousness of the defects.

 

If you have any questions regarding conflicts with a building contractor, please do contact us.

The 3 most common breaches of contract by a tenant

A landlord can ask the court to terminate a residential tenancy agreement. This is possible in cases where the tenant breaches the agreement. The court can consequently order the tenant to evict (in Dutch: ontbinding en ontruiming) the property. A residential tenancy agreement can be terminated according to the statutory grounds for termination by giving notice (in Dutch: opzegging). Termination of  an agreement can also take place by mutual consent (in Dutch: wederzijds goedvinden). However, sometimes a breach of contract is also one of the grounds for terminating a residential tenancy agreement as well.  In the following I will discuss the three most common breaches of contract by a tenant.
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Renting out your property: management agreement or tenancy agreement?

Increasingly, property owners choose to outsource the management of their properties. There is often no proper definition of what is for whose account, with costly and sometimes irreversible consequences. The main cause of this problem are the often unclear drafted agreements between owners and property managers. When you’re renting out your property; Do you choose management agreement or tenancy agreement? Read more down below.

Lease or management agreement?

The title of the agreement is not decisive for the qualification of the agreement. This is also evident from a 2019 case. Here, the parties had called the agreement agreed upon between them a “rental agreement for living space”. A specific clause granted the tenant/manager the right to sublet the premises. When the property owner wanted to terminate the lease, the tenant/manager invoked rent protection. (As if he was a regular tenant).

If this appeal succeeded, the tenant/manager could continue to sublet the rooms for an indefinite period of time. Both parties referred to the agreement as a “rental agreement,”. However, the actual performance of the agreement led the Court to come to a different conclusion. They stated that the agreement could not be classified as anything other than a management agreement. The tenant would have rent protection if the court had ruled that there was a rental agreement. This would have made it more difficult for the property owner to terminate the rental agreement.

Company as resident

In a similar case, the District Court of Amsterdam ruled that there was a management agreement with, among other things, the consideration that a private limited company could not even occupy a property as a tenant.  This made it legally impossible to speak of a tenancy agreement, contrary to what the parties had agreed.

Notices to the administrator

(Non) given announcements can also lead to a discrepancy between the tenant, landlord/manager and property owner. In a case from 2012, the tenant believed that the manager had given him permission for a large-scale renovation. The manager in turn defended this. He was stating that the tenant could not even assume that he was authorized to give permission for large-scale renovations. The Court of Appeal of Amsterdam did not go along with the manager’s defence. The claimed that giving permission for a major renovation does indeed fit in with a manager’s job. The tenant was therefore entitled to assume that he was allowed to carry out the large-scale renovations.

In addition, the tenant thought he had permission to sublet the rooms. The court ruled that even if the manager had said that he gave permission for subletting, the tenant should not, in principle, have trusted that the owner had entrusted the manager with such powers. Such a communication concerns exploitation of the property, and one can not consider this to be part of the management by the manager.

Conclusion

These cases are frequent. They are also good examples of why it is important to draft an agreement between manager and property owner carefully. It is important to prevent a property owner from the confrontation of major renovations of his premises by the tenant. As well as the prevention of subletting by the tenant or a manager suddenly invoking rent protection.

If you have any questions regarding renting out your property, please do contact us.

 

The differences between renting or leasing commercial space

What are the differences between renting or leasing commercial space? If you rent or lease commercial space, Dutch law distinguishes between two ‘types of commercial spaces’. The so-called 230a-spaces and 290-spaces. The difference between the two types of business premises and the applicable legislation is important for both tenants and landlords. In this blog I will discuss some important differences.

290 business premises

Business premises qualify as 290 business space if you lease the building or part thereof for the operation of a retail business. Such as a restaurant, a café, a take-away or delivery service or a craft business. The relevant aspect or criterion is whether the space is a publicly accessible area and if you’ll use it for the direct supply of goods or services.

In simple terms, a commercial space qualifies as a 290-spaces if consumers can physically enter and buy or order things in the leased space. For example a supermarket or a hairdresser. Hotels and campsites also fall under this legal regime.

Duration

The tenant of a 290 business space has a relatively high level of tenant protection under Dutch law. The most striking aspect is the duration of the rental agreement. The initial rental period for 290-spaces is five years. If the contract is not terminated (in time) it will be extended for another five years by law. If the tenancy agreement has not been terminated after ten years, the tenancy agreement becomes a contract for an indefinite period by of law.

Possibilities of termination

In addition to the protective regulations for the tenant regarding the duration, the termination options of the lease contract for 290 business spaces are limited.

Both the lessor and the lessee can only terminate the lease at the end of the agreed term. This is however subject to a notice period of at least one year. The termination of a lease contract of a 290 business space can therefore not happen prematurely. However and for completeness I point out that premature termination by mutual consent is possible. One can terminate a permanent lease at any date. In all cases termination by the landlord is only possible if he states the reason(s) for termination.

The law only grants a few specific grounds for termination to the landlord. Which grounds for termination the landlord can use depends on the lease period(s) that have passed. The most common grounds for termination are: bad tenancy behavior and urgent own use by the landlord. Bad tenancy is, for example, if the rent is structurally not paid or not paid on time or if the tenant causes structural nuisance.

If the tenant does not agree to a termination by the landlord within six weeks, the landlord has to go to court to have the termination reviewed. Such a procedure is often time-consuming and costly.

230a business premises

If the leased property does not fall under the regime of residential or 290 business spaces, the 230a regime applies. Common examples of 230a business spaces are office space, factories, storage space and showrooms.

The tenant of a 230a space has much less legal protection than the tenant of a 290 space. The rental period, for example, is not subject to any form of contract. One can conclude it for a short(er) period. It is common practice that parties agree on a term of (only) one year, which period will automatically extend. An indefinite period is also possible.

A contract for a definite period ends automatically when the agreed period expires. A contract for an indefinite period ends by termination by the lessee or lessor. A reason for termination is not necessary. However, a notice period must be observed. Unless otherwise agreed, the notice period is equal to the term of payment. If the rent is paid monthly, the notice period is in general one month. However, an extended notice period could be applicable if the principles of reasonableness and fairness so require.

Note that the tenant can extend his stay in the event of termination by the landlord by invoking eviction protection. For example, because he needs time to move to another business accommodation. This period can be a maximum of three years after the date on which eviction from the leased property was given notice.

Conclusion on renting or leasing commercial space

The legislations that apply on the lease of a commercial space depend on the type of business space the tenant rents. When it comes to 290-premises, such as retail space, there is far more protection for the tenant than when it comes to 230a space.

Further agreements can be made in the tenancy agreement, for example regarding the termination of the contract. When it comes to 290-premises the legal rules may never be deviated from to the detriment of the tenant. However, when it comes to 230a space, parties have a lot of freedom to incorporate specific arrangements in their contract.

When entering into a commercial lease, both as landlord or a tenant, it is advisable to carefully think about the applicable legislations and the obligations by law and by contract. And when it comes to 230a space, I recommend to already incorporate agreements about, for example, the extension of the lease period, the notice period in case of termination and of course the actual possibilities of termination. When it comes to 290 commercial space, the landlord would do well to carefully organize the possible  termination of the lease.

More information?

In case you have questions about renting or leasing commercial space, ensure certainty and have your tenancy agreement assessed by a lawyer, please do not hesitate to contact us.

4 documents to read before buying an apartment

The communal interests of the various apartment owners in one building are regulated in the Dutch apartment right. Besides the rules of law, the rules for a specific complex of apartments are written down. These are the 4 documents to read before buying an apartment:

  1. the deed of division,
  2. the general property division regulations which have been declared applicable in the deed of division,
  3. internal regulations –in case they exist-, and
  4. the minutes of the VvE-meetings are important. All owners are bound to the decisions that are made in these meetings.

It is to be advised to check all these 4 documents carefully before signing the purchase-agreement of the apartment. This way, unexpected surprises can be avoided.

The deed of division

A building is divided into different apartment rights, which are described in the deed of division. The deed of division contains a description of the fractional share of each apartment in the building, the fractional share of each apartment in the contribution of the communal costs, and the voting ratio. Furthermore, the division deed contains division regulations, which mostly consists of the reference to one of the model regulations registered in the public registers, as well as amendments and additions thereto. And last but not least, the deed of division establishes an Owners’ Association (VvE), which manages the common parts of the building. Unlike ordinary associations, all owners are members by operation of law. There is no choice here.

In particular the voting ratio might be interesting to check before signing the purchase-agreement. Can your vote be of any importance? Or will you be overruled anyway by a major owner?

The division regulations

The division regulations contain all general rules of the VvE, including which parts belong to the community and which do not, which decisions require permission of the VvE-meeting, how a budget must be set up, how a meeting must be organised, the duties and power of the board, etc.. More modern regulations also contain rules on the quality of the floors in the individual apartments, or rules on sustainability.

It is very important that these rules are followed. If not, there is an actual risk that a situation or decision can be annulled or can be declared illegible.

The rules in the deed the division or the division regulations can’t be altered just by a decision at the VvE-meeting. In case the VvE-meeting wishes to deviate from the deed or the rules, they will have to decide to change the whole deed first. However, this is not easily done. A notary must draft and register a whole new deed and all owners, or at least 80% have to cooperate.

Internal regulations

The internal regulations can be established or altered by a majority of votes in the VvE-meeting. They must also be in line with the the rules in the deed, the division and the division regulations. They are suitable for example to make sure that bikes are not stalled on the gallery, elevators are kept clean, etc..

Some internal regulations forbid smoking in the individual apartments, or having pets. This is overruled by court in case law. Smoking and having pets are a private matter. As long as they don’t bother the community with any nuisance, the VvE has no say in this.

Meetings and decisions

The VvE meets at least once a year. At the meeting, decisions are made, which are in turn implemented by the board of the VvE. If an owner disagrees with a decision, he can apply to the cantonal judge within one month to have the decision annulled. The cantonal judge can annul the decision in case he concludes that the prescribed process to come to the decision was not followed, or in case he concludes that the decision is contrary to one of the main rules of apartment right: all members in the community must behave to one another according the rules of reasonableness and fairness.

Resolutions that are contrary to the division deed or the division regulations are null and void and do not need to be annulled. For that purpose, one can go to the ordinary court to have the nullity determined. No specific time limit applies (except for the statute of limitations). A resolution in which, for example, a communal debt is divided among only a few owners, can be null and void.

 

The VvE-specialists of GMW lawfirm will be happy to represent or advise you in case of a VvE-dispute. You can contact us here. We can work it out!

Top tips: Dutch employment contract 2022

So you’ve been offered a new job in the Netherlands in 2022. The position sounds good, the terms sound reasonable, and you’re excited to accept. Now you need to check the contract before you sign it. The only challenge is that you may not know much about Dutch employment law – making it tough to understand what each clause means for your rights.

Expat employment law expert Godelijn Boonman of GMW lawyers shares her tips for assessing and understanding a new employment agreement.

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Corona vaccination at work – legal FAQ

The employment law experts at GMW lawyers share insights on your rights in the workplace regarding corona vaccination, and when it is worth contacting a lawyer.

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International divorce in the Netherlands

If you’ve already made the decision to get divorced, the next step is discovering your options. While many divorce arrangements must still be agreed, the good news is that obtaining a divorce is easier in the Netherlands.

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Why call a lawyer?

Many people hesitate before getting legal advice – not because they are unsure if they need it, but because they are uncertain if they ought to involve a lawyer. Legal Expat Desk explains why calling a lawyer can be the right thing to do.

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Divorce for expats in the Netherlands 2021

Key legal information about divorce in 2021 and 4 reasons to get divorced in the Netherlands.

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Child maintenance 2021

What you need to know about child maintenance in the Netherlands in 2021 from maintenance specialist Dylan Bertsch.

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How to lose your job in the Netherlands 2021

There are not many ways to lose your job in the Netherlands – but each of them follows a different process and has different implications for your rights. Here’s what you need to know in 2021, and when to take action.

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Partner alimony 2021

Everything you need to know about partner alimony in the Netherlands in 2021 from divorce and alimony expert Dylan Bertsch.

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Expats and adjustment of maintenance

You live in the Netherlands as a divorced expat. At the time of the divorce, you and your ex-partner made agreements about child maintenance and/or partner alimony (maintenance), or a decision was taken by the court. However, as an expat in the Netherlands, there is a good chance that your situation will change. Below is a discussion of what a change in your situation means for the maintenance you receive or pay.

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Voluntary departures, forced redundancy & settlement agreements 2021

The global impact of the pandemic continues as more and more companies cut their workforce. Whether you have been offered voluntary departure or a settlement agreement, or you have been forced into redundancy in 2021, here’s what you need to know.

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The new normal – legally speaking

So much has changed in our day-to-day lives since “corona” became part of our vocabulary that it’s easy to believe that everything is different. So has this crisis fundamentally changed your legal rights in the Netherlands? Our legal experts summarise what you need to know.

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Settlement agreements – what you need to know

As more and more companies move towards reorganisations and redundancies, voluntary leave programmes and settlement agreements are becoming a common topic of conversation. So what should you do if you are offered a settlement agreement? Is it worthwhile accepting, and what are the consequences? Here are some essential considerations.

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8 Myths about Dutch law – busted

Truth or fiction? Our legal experts dispel some common misunderstandings about Dutch law.

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Registered partnership: what you need to know

In recent years, fewer and fewer people are married in the Netherlands. At the same time, the number of people entering into a registered partnership is increasing. However, a registered partnership is relatively unknown outside the Netherlands. This article explains what the consequences of a registered partnership may be for you, what the differences between a marriage and a registered partnership are and how a registered partnership is dealt with abroad.

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Divorce in the Netherlands 2020 – what you need to know

Relationships can change at any stage of our lives, including while living in another country. If the time comes to get divorced, understanding your legal rights will help you achieve the best possible outcome.

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Reorganisation and redundancy in the Netherlands

Employees in the Netherlands enjoy strong legal rights. They can only be dismissed for a limited number of reasons (grounds). One such reason for dismissal is redundancy for business economic reasons, for example during a company reorganisation. This article explains the process employers must follow and why a settlement agreement can be easier than dismissal via UWV procedure.

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Losing your job in 2020 – key considerations

There’s not much worse than facing dismissal, except perhaps for losing your job now in the current crisis. Companies are failing, jobs are scarcer, and just getting to an interview is more complicated. As an expat, the threat to residence makes this an even bigger issue. So, if the worst happens, here’s what you need to know about your legal rights and options.

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Dismissal law in the Netherlands 2020

Dutch employment law has changed in 2020. With the introduction of a new act, the grounds for dismissal in the Netherlands have expanded. Here’s what you need to know.

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The (not so) amicable truth about divorce

Many people believe that they will be able to make the end of their relationship civil – but unfortunately, this does not always happen. Instead, escalating hurt and anger cause hostility and make communication difficult. In such circumstances, the divorce process is anything but friendly. This is where a good divorce lawyer can help.

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6 FAQ about coronavirus and work, home and business

The media is dominated by so much information about the novel coronavirus (Covid-19) that it’s hard to keep track of what it means in practice. Here are some clear answers to frequently asked questions about coronavirus and employment, property and business according to Dutch law.

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Say goodbye to shorter working hours – the WTV is discontinued

On 17 March 2020, the Dutch cabinet announced that the WTV scheme for shorter working hours has been discontinued. Instead, employers affected by the coronavirus can apply for a new temporary measure designed to support employers, employees and entrepreneurs.

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New job? Do the 5 point check

Being offered a new job is exciting, especially when it provides the next step to your career. You may want to sign the new contract immediately to secure the deal – but before you do, take a moment to quickly check these 5 points. They are key to your future rights at work.

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How to get divorced in the Netherlands – a guide for expats

If you want to get divorced, and you live in the Netherlands, you need to:

  1. Confirm if you can get divorced in the Netherlands
  2. Get a lawyer. You cannot represent yourself.
  3. Find out how to get the best possible divorce. This includes making specific agreements about your children and other important matters.
  4. Go through the legal process of a divorce.

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Why you don’t need a reason to get divorced in the Netherlands

According to Dutch law, it doesn’t matter why you want to get divorced. This fact surprises many expats. Antoine de Werd of GMW lawyers explains why this rule in Dutch law exists, and what it means for you.

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Changing employment conditions

When an employer and employee sign an employment contract, both are bound by this contract, including the terms and conditions of employment. So what happens when an employer wants to change the employment conditions that were agreed?

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When to call a lawyer about work

As an employee, you may be confronted with an unpleasant situation at work, such as a conflict, demotion or change in your employment conditions. In such circumstances, it can be difficult to know how to respond. Read more

Divorce and inheritance news for expats

Are you an international (expat) in the Netherlands? Are you going through a divorce? Have you received an inheritance or gift? If your answer to these questions is yes, read on…

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The seven things you need to check in your new employment contract

You’ve just got a new job, or perhaps you’re extending an existing position. You’ve just received a new employment contract. Before you sign your employment contract, there are some key clauses to which you should pay attention.

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GMW lawyers – the legal partner for expats in the Netherlands

Expats face the daily challenge of building a new life in a foreign country with unfamiliar rules. As a result, many people are unsure about their rights. That is fine when things go smoothly – but when the going gets tough, it may be time to call a lawyer.

Lawyers for expats

When a situation escalates past a certain point, it can become impossible to solve it alone. That’s when you need a legal partner who can help you to work it out.

GMW lawyers has been helping expats in the Netherlands to solve their legal problems for more than 25 years. With lawyers who have been expats themselves, we understand the specific challenges and needs of internationals living abroad, and offer a range of legal services to support you. Our lawyers are experts in their fields, with the knowledge and the experience to provide advice that you can trust.

Areas of legal expertise

GMW lawyers can assist you with family and inheritance law, employment and pension law, property and tenancy law, company and insolvency law and liability law.

Family law – Our divorce lawyers can assist you with family law issues ranging from pre-nuptial agreements to divorce, custody, partner alimony and child maintenance. Our inheritance lawyers can help you to deal with inheritance issues and advise you on your rights and obligations as an heir in the Netherlands. They can also advise you about estate planning, and specific issues such as appointing an executor or a guardian for your children.

Employment law – Our team can answer your questions about employment contracts, pensions and human resource policies. We can also help you deal with employment issues such as dismissal, performance, illness, non-competition clauses, outsourcing, collective bargaining agreements, privacy and discrimination. Our clients operate in virtually every industry and vary from knowledge workers, directors, corporate level executives and civil servants to entrepreneurs and independent professionals.

Property law – GMW lawyers can help you in all aspects of property law. Whether it is about the purchase, sale, construction, project development, financing or rental of property, our experts can help you find a solution. We work with: housing associations, property investors, property managers, project developers, construction companies, local authorities and private landlords.

Company law – Our corporate and insolvency lawyers contribute to the success of SME’s, large and small international companies, non-profit organisations, management boards, supervisory boards and shareholders. From contracts to commercial disputes, directors’ liability and financial problems, we will help you find the best solution for your business.

Liability law – If you have suffered damage caused by a third party, you need trusted advice to help you hold them liable. GMW lawyers can support you in the event of personal injury, breach of contract, work-related accidents, unlawful acts, group claims and directors’ liability. Our clients include private individuals, entrepreneurs, directors, principal shareholders and non-profit organisations.

How GMW lawyers helps expats

GMW lawyers team of legal experts can advise you on your rights and legal options, and offer mediation and/or litigation where needed.

If you’re just starting to investigate a legal question, we recommend discussing your case with a lawyer. They can advise you about your rights and help you decide whether or not to take legal action. Should you decide to proceed with your case, your lawyer can then support you throughout the process.

How to get started

Discuss your case with one of our expat lawyers. Submit your question online, start a conversation by phone on +31 (0)70 3615048 or make an appointment online via www.gmw.nl/en

 

This article was originally published on Iamexpat

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Inheritance is fundamentally a difficult subject to think about, but as an expat with family in other countries, it can be even harder as you have to deal with contradictory and confusing international laws during a difficult time. Here are some key considerations to simplify inheritance law for expats living in the Netherlands.

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Who will guard your child when you’re gone?

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Why written notice is indispensable for employers

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Help! My ex-partner took my child abroad, what can I do?

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Same-sex marriage & divorce

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Things to consider when confronted with dismissal

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Personal injury law in the Netherlands

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Liability in a whiplash – 7 FAQs

Whiplash is one of the most common types of injury in traffic accidents, yet determining liability in a whiplash often leads to a long and complicated legal battle. In this blog I answer the 7 most frequently asked questions (FAQ) about liability in whiplash injuries.

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Business outings and liability

The first year’s results are in, and your company has outperformed all expectations. Now is the time to reward your team with a great celebration. But can you really afford the risk of a team outing this summer? Peter van Eijk offers expert insights on the issue of business outings and company liability.

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Attention divorcing Aussies!

Suppose you are an Australian, now living in The Netherlands. While you were living in Australia, you got married. During your marriage, you received an inheritance following your parents’ death in Australia. You’re now facing divorce in The Netherlands. Do you have to share your inheritance with your ex?

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Divorce: nowhere easier than in the Netherlands

There are an enormous number of things that make up a divorce. Not only the divorce petition itself, but also various further arrangements which the spouses need to agree upon. These include the parental contact, maintenance (alimony) and the allocation of assets. Agreeing on divorce arrangements is no easier in the Netherlands than any other country. However, obtaining a divorce in the Netherlands is easier.

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Recognising foreign spousal maintence decisions

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Pay your ex-partner’s divorce costs?

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