Recht van nu 9 English 9 The purchase of property

The purchase of property

30 aug, 2022

Although this is decreasing due to the increasing digitalization (of the Internet, web shops, e-mails, SMS, WhatsApp and (other) social media), many agreements still are concluded verbally, as one party makes an offer and the other party accepts that offer.

In most cases, this will not be a problem. Namely, almost all agreements can be concluded orally. The written record is then not a condition. The main function of this documentation is to make it easier to prove in retrospect that the parties actually concluded an agreement and what it entailed.

The purchase of a property must be in writing

This is different for the purchase of a house or apartment by a private individual. If the buyer is a natural person and not acting in the exercise of a profession or business, the contract can only be concluded in writing.

The law specifically speaks of a “deed.” This is a document signed by the parties, intended to serve as evidence. Therefore, not only can the purchase agreement not be established in a digital way (for example, via email or WhatsApp), but not even via letters, where the seller formulates the offer in one letter and the buyer accepts it in another letter.

As long as the agreement is not in writing, the parties cannot hold each other to compliance with the agreements made. The private buyer and private seller also cannot force their contract partner to sign. This was pronounced by the Dutch Supreme Court in its ruling of December 9, 2011. The circumstance that the parties must take each other’s interests into account during the negotiation phase (and may not even break off negotiations under circumstances) does not change this.

In its preliminary ruling dated December 15, 2023, the Dutch Supreme Court ruled that this written requirement does not apply to the purchase of a plot of land (a building lot), if there is no house on it. This article (written in Dutch) discusses this ruling in more detail.

The buyer has a three-day reflection period

After the purchase agreement is signed by the parties, it must be given to the buyer. Then the buyer has three days to dissolve the contract. He is only not allowed to use this power if by doing so he abuses his right. For this dissolution, the buyer does not have to give a ground.

The reflection period is three days and commences on the day after the agreement signed by both parties is given to the buyer. It always ends at 11:59 p.m. of the third day. If the agreement is delivered to the buyer on Monday, the cooling-off period thus ends at the end of Thursday.

Of the three days, no more than one day may be a Saturday, Sunday or nationally recognized holiday (including Christmas, Easter Monday and King’s Day (Koningsdag)). Therefore, if the contract is issued to the buyer on a Friday, the term ends at the end of Tuesday. And if Christmas Day and Boxing Day fall on that Monday and Tuesday (or Tuesday and Wednesday), the reflection period does not even end until the end of Thursday.

The dissolution is free of formalities. This means that, in principle, the buyer can express the dissolution in any way he wishes. Thus, this may also be done orally. In general, however, it is wise for the buyer to dissolve the sale in writing, with confirmation of dispatch and receipt. This is because in that way he can prove that the contract was dissolved in time, if the seller disputes this.

To obtain clarity about the commencement date of the reflection period, buyers often sign a confirmation of receipt of the purchase agreement. The seller may require the buyer to sign such a receipt.

The right of dissolution arises once every six months

When the buyer dissolves the purchase, the parties are no longer bound by the agreement. The seller will then have to look for a new buyer. The seller is not obliged to renegotiate with the buyer. The freedom of contract precludes this. In many cases the seller will not be interested either. After all, he will have little confidence in the buyer, who has, after all, reverted to an earlier agreement. However, the parties are free to renegotiate with each other.

If the parties do renegotiate with each other and even come to a new agreement, the buyer’s right of dissolution does not arise if the new purchase agreement is concluded within six months of the dissolution.