Buying and selling
Buying and selling
Buying and selling real estate
The lawyers specialising in property law at Hielkema & co are experts in the field of buying and selling real estate. This concerns residential as well as business premises. With our many years of experience in real estate, we are highly qualified to advise you on buying and selling property and to assist you if there is a dispute.
We assist with transactions involved in the purchase of one or more premises, but also involving larger complexes and shopping centres. We provide our clients with the advice they need concerning rights and obligations, the drafting of purchase agreements, specific clauses and sitting tenants, for instance. We also have a great deal of experience in conducting proceedings relating to delivery obligations, defects, resolutive conditions, contractual penalties and other matters. We can support you with advice and assistance every step of the way.
The purchase agreement
There is a lot involved in buying and selling a property. The investments for those concerned are often considerable. That is why it is crucial for clear agreements to be made in the purchase agreement. This can prevent a lot of discussions and disputes concerning the purchase price, the delivery date and resolutive conditions.
Moreover, drawing up contracts always involves customised work. For instance, properties often have certain features that can affect their potential uses. If this is the case, you may want to include specific clauses in the purchase agreement. For instance, if the property was built before the war, an age clause may be relevant. The purpose of an age clause is to limit the seller’s liability if defects arise after the sale. Another example is a building with national monument status: if that is the case, it would be prudent to include this in the purchase agreement.
Defects when buying real estate
Many disputes in property purchases arise after delivery when the purchasing party alleges that the property purchased does not comply with the contract. In other words, they claim that there is a defect.
When determining whether there is a defect, on the one hand it is necessary to ascertain whether the buyer fulfilled the obligation to investigate; that is, that they investigated the condition of the property before buying it. For instance, they may inspect the property, ask the seller relevant questions about it, and have a structural survey carried out.
On the other hand, the seller has a duty of disclosure. This means that if a seller knows about a particular defect, they must inform the buyer of this. The seller can meet their obligations in this respect by mentioning the defect in their sales brochure, but also by answering the questionnaire drawn up by the NVM (the Dutch Association of Real Estate Brokers and Real Estate Experts), which is then attached to the purchase agreement.
Finally, what the parties have agreed to in the purchase agreement concerning defects and other circumstances that play a role is also relevant. This also determines their reciprocal rights and obligations.
Resolutive conditions in the purchase agreement
The current housing market, with its limited supply and high demand, is putting a lot of pressure on people buying houses. This means that purchase agreements are regularly entered into even though buyers are not certain whether they will be able to get financing for the house. To limit the risks for the buyer, many purchase agreements include a so-called financing arrangement clause. This means that if the buyer is unable to get financing and the conditions of the clause have been met, the buyer is entitled to cancel the purchase agreement without paying a penalty.
Apart from financing arrangement clauses, purchase agreements regularly include a resolutive condition related to a structural inspection that is yet to be carried out. This means that, under certain circumstances, the buyer may still cancel the purchase agreement after this inspection has been carried out.
Resolutive conditions like this are often the subject of disputes and litigation. In these disputes, the seller’s position is usually that the buyer has wrongly invoked the resolutive condition. More specifically, the seller will claim that the buyer has wrongfully failed to honour the purchase agreement and therefore owes a contractual penalty (often set at 10% of the purchase price).
For this kind of dispute, the circumstances under which the buyer is entitled to invoke the resolutive condition, and the extent to which the buyer complied with it, need to be examined carefully.
Hielkema & co: specialists in the buying and selling of real estate
Thanks to our specialist knowledge, we are fully aware of all the rights and obligations that apply to the buying and selling of property. We advise buyers as well as sellers and, if necessary, assist them in legal proceedings. If you have any questions or if you have become involved in a dispute with a buyer or a seller, then please call +31 (0)85 – 57822820 without obligation or complete the form and we’ll contact you.