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:
- the deed of division,
- the general property division regulations which have been declared applicable in the deed of division,
- internal regulations –in case they exist-, and
- 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!
Marie-Christine studied law at the University of Leiden and has an extensive experience in real estate law. She joined GMW lawyers in 2012, after she and her family returned from a four year stay in the Sultanate of Oman. Because of her experience abroad, she is well aware of the problems that expats can encounter while living outside their homeland.
Marie-Christine is specialised in tenancy law and is a member of the Specialist Association of Tenancy Law Lawyers. She advises on complicated matters of tenancy law regarding both residential and business accommodation. Her clients include housing corporations, local authorities, food service industries, enterprises of all sizes and national and private individuals from the international community. She advises and litigates on issues such as commencement and expiration of the lease, general terms and conditions, defects on delivery, concurrence of tenancy regimes, joint tenancy, hemp plantations, disturbances by neighbours, etc. Marie-Christine gives lectures on tenancy law to several real estate companies.
In addition to tenancy law, Marie-Christine also has broad experience in the purchase and sale of real estate, apartment rights, construction law, administrative law, law of obligations and debt-collection. She is well-known for her analytical skills combined with a vigorous approach.
