Экзамен зачет учебный год 2023 / 21 Netherlands

Netherlands

As well as being created on the debts of the mortgagor, a mortgage may also be created on the debts of third parties. Such cases are referred to as third-party mortgages; the owner and not the borrower is then the mortgagor. Group company financing often involves third-party mortgages. A bank extends a credit facility to the parent company, on the basis of which a mortgage on the immoveable property of the operating companies is provided as security.

Under normal circumstances, the mortgagee is also the financier. If a banking syndicate performs as financier, it is not practical that all the banks become mortgagees considering the foreclosure process. By means of a parallel debt structure, an agent may be appointed as mortgagee, which agent the parties agree has an equal claim to those of the combined banks. Such a structure is not contrary to the dependent character of the mortgage right.

VII LEASES OF BUSINESS PREMISES

Tenancy law makes a distinction between two types of business premises: retail premises and other business premises. Lease of retail premises covers, inter alia, use of the immoveable property for retail trading, as well as its use as a restaurant, café or craft workshop. The premises must include a space accessible to the public for the direct supply of movable goods or services. The regime for retail premises is intended to offer protection to the lessee by means of mandatory provisions due to the location specificity of the lessee’s business. The ‘other business premises’ category is a residual one. This regime covers all built immoveable property that is not leased as retail premises or housing. The ‘other business premises’ category is very broad; for example, it includes offices, parking space, factory buildings, storage space and warehouses. The lessees of ‘other business premises’ receive only limited protection from the law. In this category, actors have much freedom in defining the terms of a lease as they see fit.

Business premises leases are customarily drafted in conformity with Real Estate Council of the Netherlands’ models. These models are the commonly used standard leases for business premises in the Netherlands and are generally lessor-friendly. Among other things, the models concern the term, rent, rent increase, lessee liability and security aspects.

i Retail premises

General leasing regulations apply to the ‘retail premises’ category. In addition, mandatory provisions apply, including those concerning the lease and notice periods.

The underlying principle of the retail premises regime is that the period of the lease must be at least 10 years. In practice, leases are often concluded for a period of five years with the possibility of extension for an additional five years. Even when no second five-year period is agreed, the lease is extended by an additional five years by operation of law. The underlying idea is that ten years is sufficient for the investments made by the lessee to be written off. Should the lease be for a specified period, notice may be given towards the end of that period. Should the lease be for an indefinite period, then notice may be given at any time, provided the duration of the lease has been at least 10 years, and the notice period must be at least one year. Notice given by the lessor terminates the

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lease only if the lessee agrees to the termination or the lease end date is fixed irrevocably by the court at the petition of the lessor. The lessor can give notice on the following grounds:

athe lessor urgently needs the leased property for its own use (including use as business premises of a different kind or renovation of the leased property that cannot be carried out without termination of the lease);

bthe manner in which the lessee operates its business does not befit a good lessee;

cthe lessor desires the realisation of the leased property’s purpose as designated in a valid zoning plan;

dthe lessee does not agree to a reasonable offer to enter into a new lease that does not include any change to the rent; or

ethe lessor’s interest in termination weighs more heavily than that of the lessee in continuation of the lease.

ii Other business premises

General leasing regulations apply to the ‘other business premises’ category. Aside from these, considerable contractual freedom exists. No mandatory provisions with regard to lease and notice periods, etc. apply to these types of business premises.

The only mandatory protection the lessee enjoys is that against eviction. Should notice ending the lease be given, notice of eviction must also be given expressly. Should the lessee not agree to the termination of the lease, the lessor’s obligation to vacate is suspended by operation of law for two months from the date on which notice of eviction was given. During these two months, the lessee can apply to the court to have the period of suspension extended. Extension by a period of up to one year is possible. The lessee may repeat such an application twice, so that suspension of the obligation to vacate can be extended by a maximum of three years (three x one year). In the assessment of such applications for extension (unless the lessee has – to put it succinctly – been guilty of misbehaviour), a balancing of interests is made.

There is no possibility of appealing the court’s decision on an application for extension. During the period in which a lessee does not as yet have to vacate, the rights and obligations of the parties continue to apply. The compensation the lessee must pay to the lessor is in principle the same as the rent that applied on the date that notice of eviction was given; however, should one of the parties so request, the court will fix the compensation that the (former) lessee is to pay during the extension period to come. The court sets that compensation at an amount that is reasonable when compared to other rents in the locality.

VIII OUTLOOK AND CONCLUSIONS

Dutch law regarding immoveable property constitutes a stable system. It is characterised by considerable legal certainty. The land registration system is of a high standard and offers transparency regarding the ownership of immoveable property to anyone that is entitled to it under a limited right such as building or leasehold rights, and who has been granted mortgage rights as security. A variety of investment vehicles are available to facilitate joint investment. As a consequence, tax, legal, financial and organisational arrangements can

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be tailored to any given situation. Tenancy law provides well-balanced rules for two types of business premises. For small, location-specific businesses, the necessary protection is offered while for the leasing of office premises and factories, parties have considerable freedom to define their mutual relationships as they see fit. Immoveable property in the Netherlands, therefore, constitutes an attractive object of investment for investors striving for a stable investment in the long term.

In the current economic climate, attempts are being made to stimulate the real estate sector through a number of measures including the Crisis and Recovery Act and the temporary reduction of real estate transfer tax on homes, thereby contributing to the economy, employment and accessibility.

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Appendix 1

About the Authors

Annemieke Wessels

De Brauw Blackstone Westbroek NV

Annemieke Wessels is a civil law notary and partner with De Brauw Blackstone Westbroek NV. She heads the real estate practice group and focuses on project development, acquisition of real estate and real estate portfolios, restructuring of institutional and non-institutional investors’ real estate portfolios, real estate funds, sale and lease-back structures, tenders or controlled auctions, real estate finance, securities and public– private joint ventures. She also advises clients on many other real estate-related matters (e.g., infrastructure issues). Ms Wessels advises Dutch and international institutional and non-institutional investors, pension funds, Dutch multinationals and other large companies, developers, construction companies, banks, non-profit organisations and municipalities, and others. She often works in close cooperation with De Brauw’s other practice groups such as IMG, finance and M&A, creating a full range of services for all real estate-related projects for national and international key players.

Maarten Tinnemans

De Brauw Blackstone Westbroek NV

Maarten Tinnemans has worked with De Brauw Blackstone Westbroek NV since 2007. He is a senior candidate civil law notary in the real estate practice group and focuses on real estate funds, acquisition and divestment of real estate portfolios, controlled auctions and real estate finance. Mr Tinnemans has advised on numerous real estate transactions, tenders and many other real estate-related topics, and has recently been involved in the set-up of a €1.1 billion retail fund.

Max van Drunen

De Brauw Blackstone Westbroek NV

Max van Drunen is a candidate civil law notary specialised in real estate law and has worked with De Brauw Blackstone Westbroek NV since 2009. His practice includes

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About the Authors

large real estate transactions, securities, portfolio reorganisations, infrastructure and real estate related advice on fund structuring. Dr Van Drunen has recently been involved in several transactions for foreign institutional investors and is highly conversant with German law and business culture.

De Brauw Blackstone Westbroek NV

Claude Debussylaan 80

1082 MD Amsterdam The Netherlands

Tel: +31 20 577 1771

Fax: +31 20 577 1775 amsterdam@debrauw.com www.debrauw.com

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