Short term rent restrictions unlawful?

Dutch Airbnb rentals get tough treatment

Short-stay rentals typically appear to be regulated at a municipal/regional level and thus differing regulations can be seen within a given country. The serious increase of short stay rental activity  in recent years, cities around the world are looking at ways to reform their regulations or have already taken actions to do so.

short stay rental

Scruffy Dutch law discourages landlords

Because the traditional regulatory frameworks were largely designed without these new additions to the short-term accommodation market in mind, there is a danger that they will be ill-adapted to application to Airbnb-style providers or that such providers may entirely fall outside of the scope of the regulatory framework. As a lawyer focused on human rights article 1 EP (European Protocol) comes in the picture, the right to property, in particular the right to derive profit from property recognised by the the European Court in the case Hutten-Czapska vs Poland.

A more social consideration is also used by the Court:
Property, including privately owned property, has also a social function which, given the appropriate circumstances, must be put into the equation to determine whether the fair balance has been struck between the demands of the general interest of the community and the individual’s fundamental rights.

Ban on airnbnb rentals unjusified

In my Dutch law firm we notice a increasing call from property owners that do not accept de local restrictions e.g. in the City of Amsterdam.  To my opinion the balance has gone to far in the protection mode and the basic right of the landlord to rent including short stay rent is infringed.

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Dutch cannabis policy at crossroads

Compliance with Dutch Cannabis Regulation

Once the Dutch cannabis policy was famous: too liberal, unacceptable, condemned by many. But now the signs are different. Even countries like the US and Belgium have more liberal policies to allow consumption and growing of hemp. The Dutch drugs policy is at crossroads. The tough political stance has deteriorated the cannabis policy so much that even the Dutch Courts do not support the government policy any more. Coffeeshop owners (who are allowed to do legitimate sales of cannabis in the Netherlands and keep a stash) and even growers are left off the hook. The Dutch Secretary of State responsible for this tough approach has stepped down for other reasons. So, the cannabis community in the Netherlands has high hopes that new policy will make life easier for growing cannabis and selling in to consumers.
Cannabis Colarado

Netherlands Marijuana law outdated

In an attempt to backup the tough policy the Dutch government asked a Dutch University to prepare a report on Dutch softdrugs policy in view of international treaties. The university report submits that all modalities for cannabis sales re in fact contravening international law. Also recent initiatives for cannabis social clubs are scrutinized: “In view of the various prosecution obligations ensuing from the UN Drugs Conventions and European law with respect to, in principle, serious criminal of-fences, it is hard to defend that criminal policy-based non-prosecution (penal tolerance) of cannabis cultivation for the supply of coffee shops is legally permissible on the basis of the expediency principle (. . .).”

Cannabis Social Clubs

The obligations to prosecute for joint cultivation and consumption in Cannabis Social Clubs, however, is less clear-cut, according to the report. Although such cultivation cannot be equated with cultivation for private personal use, the connection is such that states are at liberty to refrain from prosecution based on expediency considerations. The conclusion of the researchers is that permitting cannabis cultivation for the supply of coffee shops cannot be implemented on the grounds of the legal arguments provided by Dutch municipalities with due observance of the UN Drugs Conventions and the EU legal instruments.

Report on cannabis brings no new Dutch Cannabis Law

The report amongst others concludes: ”The various regulating modalities in the final part of the evaluation include regulated legalization (Uruguay and the US federal states Colorado and Washington), joint cultivation in Cannabis Social Clubs (Belgium, Spain and Uruguay), cannabis cultivation by non-profit growers, cannabis cultivation by licensed commercial parties, and cannabis cultivation for recreational use under the veil of medical or scientific programmes. The conclusion with respect to all these modalities for cannabis  is that the fight-against-drugs framework under international law leaves no room for legalization, decriminalization policy-based tolerance and/or any other regulating approaches. Only with respect to Cannabis Social Clubs, however, would a state less easily be in conflict with the obligations pursuant the UN Drugs Conventions and European law whenever that state would in fact just leave those Clubs untouched (thus without applying regulating measures or any explicit policy thereto).

Source: International law and cannabis, 2014, Ministry of Justice, the Netherlands, ISBN: 9789013124286

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Dutch sport horses

Netherlands Equine Law

Holland is well known for it’s breeding and trading horses, in particular sport horses. A lot of horses are exported from the Netherlands to owners in other countries. Dutch Stables have done very well in breeding Dutch warmblood horses. Some perform at the highest level in jumping and  dressage. The planned breeding policy of the KWPN (Royal Dutch horses Netherlands) has contributed to this. KWPN  is a Dutch organization specialized in the breeding of jumpers, dressage horses, harness horses, and Gelder horses. The quality of the KWPN horse is renowned and praised worldwide. Depending on its bloodlines, conformation, and abilities, a KWPN horse is registered as a jumper, dressage horse, harness horse, or Gelder horse.

Attorney Mark van Weeren and Dulona

Attorney Mark van Weeren & Dulona

Legal aspects when buying a sport horse in Holland

Some specific aspect of Dutch law are relevant when buying a horse in the Netherlands. You can read about this here. I mention  briefly the basics a buyer of Dutch sport horse should take into account:

– the duty to investigate the horse, preferably obtain a veterinarian’s examination report of the horse and X-ray pictures;

– there is a difference between buying a horse as a private person or as a tradesman of company; – export rules and regulations;

– contracting out of liability issues;

17meiMaudDulona 055

Regional horsejumping competition in Holland

– short notice period to seller upon discovery after the purchase of a defect, deficiency or disorder in a horse.

I have supported clients in their horse businesses assisting them with legal documentation on horse-related transactions and everything else from reviewing basic contracts involving horses to litigating complex cases.

Contract and legal advice on sport horses

The purchase of a horse in the Netherlands may involve a substantial financial commitment and it’s is in your interests to minimize your risk and seek and obtain professional legal and veterinarian’s advice before committing to the purchase. The issues that arise and the risks attendant on buying a horse increase proportionately with the price and breed of the horse. If you need expert advice from me as Dutch horse lawyer lawyers e-mail markvanweeren@blenheim.nl and one of the team will contact you to discuss your case. Alternatively please call the Blenheim law firm in Amsterdam: telephone 0031 20 5210100.

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#blogtobook – Book on ground lease in the Netherlands

Land Lease of land ownership?

Buying a house without ground lease (erfpacht) in Amsterdam is tough; 80% of the city’s land is owned van the municipality. The municipality of Amsterdam has used land lease (erfpacht) since 1896. More than 200.000 land lease contracts are outstanding in Amsterdam. The origin of ground lease is agricultural though and was introduced centuries ago in the Netherlands.

Dutch Land Lease as planning tool

Land lease or ground lease is an urban planning tool which may give good return on investment. In the Netherlands however due to the banking crisis land lease as an instrument has come under attack. Banks are not so willing anymore to finance house on private landlease. Especially private landlease conditions applying to the lease are criticized. The City of Amsterdam is force to modify their ground lease system. For any legal issues on real estate in the Netherlands don’t hesitate to contact me.
Erfpachtboek 50 vragen over erfpacht Mark van Weeren

 Legal aspects of Ground Lease

Land lease (erfpacht) is a right “in rem” or a “material right” and therefore exists independently of the person that owns the ground lease right. The owner of the land retains the legal ownership of the land and at the same time – under certain lease conditions – transfers the use of the land to someone else. The ground lease transactions in the Netherlands are materialized through a notary. The notarial deed is registered in the Dutch Register (Kadaster) in order to valid. The lessee can sell or assign his ground lease. He is not always entirely free in choosing the person he will sell the lease. The landowner has to give permission for any transfer.

Issues in Dutch book on Ground Lease

In my book on land lease in the Netherlands – 50 Vragen over Erfpacht – (50 Questions on Ground Lease) all issues ground lessees in the Netherlands encounter are dealt with. The book on land lease is published by Kluwer (July 2014) The tricks landowners use to obtain financial gain are listed in the book so lessees can check their ground lease conditions. The book does not only deal with the legal aspects of ground lease but also tackles, amongst others:

– the financial aspect of ground lease

– taxation of the lease in the Netherlands

– valuation of the land used for ground lease

– ground rent

– renewal of the ground lease

– pricing issues of land lease on renewal

– unfair practices of landowners

– compensation of lease upon ending of the ground lease

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A Foundation in the Netherlands

Dutch trust explained

A foundation (stichting) in the Netherlands is defined by law as “a legal person created by a legal act which has no members and whose purpose is to realize an objective stated in its statutes using capital allocated to such purpose”. The foundation is used  a lot for non profit organizations like school or hospitals, charities, sports organization and promotion purposes, relief organizations, as well a family foundation, as holding vehicle for shares or certificates of shares. The Dutch foundation is also uses as a vehicle for protection purposes against hostile take-over of public companies at the Dutch Stock Exchange. A Dutch business lawyer can explain the relevant aspects of the Dutch foundation.
Foundation Netherlands

Dutch Foundation

It is possible to pursue a purpose of private benefit. However, the purpose of the Dutch foundation cannot be to distribute the foundation’s profits to the founder or to members of its organs. The founders can be members of the board. Commercial activities are allowed if these are within the objectives of the foundation and are in general taxed. The regular company tax in the Netherlands will then be applicable.

Incorporation Dutch Foundation

Foundations are established by a Dutch Notary through a notarial deed by the containing the bylaws. The foundation will then be a legal entity and has  full legal capacity. The initial board of the foundation has to be specified in the deed. No governmental body is involved in establishing a foundation. Minimum capital is not required for the establishment or operation of a foundation. Regarding the purpose, there are no restrictions. The Dutch foundations can be established for public and private purposes. The only restriction is that the purpose cannot be to distribute the foundation’s profits to the founder or to members of its organs.

Company register in the Netherlands

Foundations are registered with the local Chamber of Commerce in the Netherlands. The deed of establishing of the foundation and the bylaws are kept at the register as well as the names and the addresses of the foundation itself, members of the board with powers of representation, representatives of the foundation and its founders. A Dutch attorney can investigate the foundation’s registration, the registered board members and it’s annual accounts.

Board of Dutch Trust

The board members represent the foundation towards third parties. The statutory provisions of the foundation could assign the right of representation to one or several board members and also to other persons who are not  board members. The board has the duty to maintain financial records and keep an administration. Within 6 months from the end of each financial year, the board must prepare a balance sheet and a statement of revenues and expenditures of the foundation. An external audit is only necessary for medium or large entities. That is the case is two of these items apply:; net sales exceeding € 8.8 million; average number of employees is above 50 and/or the assets exceed an amount of € 4.4 million. Each member of the board has an obligation towards the foundation to perform the duties assigned to him properly. For matters within the competence of one or more board members, each board member  is jointly and severally liable with respect to any shortcoming. Only if  the shortcoming is not attributable to a board member and he is able to proof that, then he may not be liable.

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Patent application and claims in the Netherlands

Requirements and procedure to protect patents in the Netherlands

In order to be eligible for a patent in the Netherlands, you must have devised a technical invention that complies with three material conditions.  Requirements for patent registration in the Netherlands are:

  • Novelty
    The product or process may not have been made public anywhere in the world before the date of submitting the patent application, not even through the activities of the inventor himself (e.g. by means of a company brochure or a presentation at a trade fair).
  • Inventive step
    The invention may not be obvious to a professional.
  • Industrial application
    The invention must relate to a technically demonstrable functioning product or production process

Patent protected?

Patent infringement and advise on Dutch law

A Dutch lawyer can advise on the aspects of the Dutch patent law system. The Dutch court is competent to hear cases of patent infringement taking place in the Netherlands. The infringing party in the Netherlands can summoned to Court by a Dutch attorney. Profits  earned with infringements and damages can be fully collected from the tort feaser.

Dutch agency provides support on Dutch patents and innovation

NL Patent Office is a service agency which is closely associated with many (inter)national organisations in the field of intellectual property rights. NL Agency supports international cooperation and development efforts, both private and public, and encourages knowledge institutes in knowledge valorization. Do you have an international project in a developing country or an emerging market? You can check out what NL Agency can do for you.

 The agency provides support and supervision to entrepreneurs, service organisations, scientists, researchers, students and other interested parties in the Netherlands, NL Patent Office provides training programmes, gives advice and publishes various brochures and other publications (in Dutch only).

If you are not from the Netherlands you also contact The European Patent Office or the National office of your own country.

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Dutch Supreme Court rules is favour of Samsung

Samsung has not infringed the patent op Apple with its table computers according tot the Supreme Court in the Netherlands is a decision of May, 31, 2013. Apple submitted that the Galaxy Tab 10.1v infringed its European patent on the Ipad tablet. The lawyers of Samsung were successfull in fighting the claim op Apple. In the earlier judgment of the District Court and the Court of Appeal the claim of Apple was also ruled out. In several other European countries Apple has also started infringement proceedings.
Samsung Galaxy Tab
According the Courts in the Netherlands the Apple design only has a character of its own to a limited extent. The elements of the design already exist in products that were marketed previously by others. Therefor the scope of legal protection of the design is limited. Various parts of the Samsung tablets are distinct and noticable for users. The Supreme Court confirmed the judgement of the appeal Judge.

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