Wet Koop onroerende zaken; de evaluatie - WODC

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MOLENGRAAFF INSTITUTE FOR PRIVATE LAW 4 Article 7:3 of the Civil Code, the Vormerkung 4.1 General findings The rules concerning the Vormerkung are of a technical nature and have given rise to many questions. These questions have mainly arisen in the literature and concern legal-technical matters. The Vormerkung has far-reaching effects, especially with regard to the breach of the principle of paritas creditorum. 4.2 Experiences in practice Practice has not reported many problems. The questionnaires show that buyers make use of the possibility to enter their contract of sale in the public registers, but there are no reports of the protection actually being used. The questionnaires also show that the existence of the rule is not widely known amongst buyers and sellers. 4.3 Questions The questions that have arisen in relation to the Vormerkung are the following: - What must be registered in the public register? - Can the registration of the contract be delayed until certain conditions have been met? - Is registration possible if the right to the delivery of the property follows from a source other than a sales contract? - Can the sale of a still to be formed joined ownership be registered? - Can a sale via an executionary auction be registered? - Which facts or legal acts cannot be held against the buyer and by whom? - How does the protection relate to a bridging mortgage loan? - Does the registration protect against a later split in joint ownership? - Is the assignment of a registered right to delivery possible? - What if, in the case of a double sale, the second sale is registered while the older right to delivery should prevail? - Does the registration protect against the seizure of (future) rental income? - Who must deliver in the case of the moratorium or bankruptcy of the seller? - Does the trustee in bankruptcy have to cooperate with the delivery if the purchase price does not cover the mortgage loan? - What if, as a result of certain procedures, the six-month period of protection threatens to expire? - Does the cooling-off period under article 63a Bankruptcy Act also apply to the buyer who had his right to delivery registered? - What role is left for the notary, as the sales contract has already been concluded when the buyer wants to register the contract? The most important questions concern seizure; case law shows that this has led to problems in practice: - Is the inequality between seizures before and after the registration justified? - Should it be possible to convert the seizure of the home with the seizure of the purchase price? - Is seizure of the purchase price under the buyer possible? 4.4 Recommendations The research team feels that in answering the questions summed up above, the rationale of the rule, that is securing the right to the actual delivery of the home, must be the point of departure. Although the legislator acknowledged that with the Vormerkung the principle of paritas creditorum is to a certain extend breached, the research team feels that this should not lead to differences in the position of seizures that took place before and after the registration of the sales contract or to the seller profiting from the Vormerkung. 246
MOLENGRAAFF INSTITUTE FOR PRIVATE LAW The terminology of article 7:3 of the Civil Code, as well as the situations in which the buyer is protected, share many common features with the Bankruptcy Act (Faillissementswet). Therefore, in the proposed Insolvency Act (Voorontwerp Insolventiewet) explicit attention should be paid to the delivery of property in combination with the Vormerkung. It should also be noted that the Vormerkung potentially serves other objectives than the protection of the buyer’s right to actual delivery, for example market transparency, the prevention of fraud and quicker payment after delivery. It is recommended that the legislator should take these aspects into account. The introduction of the Vormerkung has achieved its goal to reinforce the buyer’s right to the actual delivery of the home. However, the rule has several (unintended) side-effects, such as an (overly) farreaching breach of the principle of paritas creditorum and possible ways of benefiting parties that were not envisaged. Realising the full potential of the rule entails that each question or side-effect must be addressed and determined if the law needs to be amended or to discern which approach should be adopted. 5 The 5% rule 5.1 General findings The intention of article 7:768 of the Civil Code is to reinforce the position of the non-professional client. As a result of this rule, the client has a means of putting pressure on the building contractor with regard to rectifying certain shortcomings. Interviews with building contractors revealed that the availability of this means of pressure has not led to a quicker rectification of constructional or technical shortcomings. What has become clear is that building contractors wait until the three-month period has elapsed before commencing repairs. A second element of the protection granted by this rule lies in the possibility that the client can obtain the funds that were held on deposit if a repair is impossible. Interviews and a large number of arbitration cases concerning this rule demonstrate that the rule has encountered several implementation problems in practice. As a result of this, the objective of the rule - reinforcing the position of the non-professional client - has not been fully realised. Due to these implementation problems, legal uncertainty remains for the client, which does not enhance his position. The objective of the 5% rule is not undermined by the use of bank guarantees. Bank guarantees also mean restrictions for the constructor and are therefore a means of pressure. Additionally, the client has something on which he can fall back if a repair by the constructor proves to be impossible The amount of 5% of the total sum to be paid by the client seems sufficiently high to be able to enforce repairs by the constructor. A higher percentage would probably lead to higher sums to be paid by the client. The money kept on deposit does not lead to a quicker repair by the constructor. This is mainly attributable to the fact that during the three-month period more shortcomings can emerge. 5.2 Problems in practice As follows from the large number of arbitration cases and the interviews the following problems have occurred: - uncertainty as to what is a shortcoming in the performance; - uncertainty with regard to the procedure for releasing the money held on deposit and the role of the notary in this; - uncertainty and inefficiency if various procedures are commenced concerning different shortcomings; - clients withhold disproportionally large amounts of money on deposit compared to the shortcomings involved; - the application of the rule in relation to shortcomings to communal parts of apartment buildings; 247
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INHOUDSOPGAVE LIJST VAN AFKORTINGEN
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Wet Koop onroerende zaken; de evaluatie - WODC

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