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.
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
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.
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.
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:
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 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.
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.
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.
The Netherlands are the ideal domicile for companies that operate globally. The good fiscal climate in Holland exists especially because of the large amount of tax treaties entered into with other countries. Therefor Holland has an advantage over other countries offering competitive tax schemes. Companies like Cisco, HP, Tesla, Dtek, Abbott, as well as international artists like The Rolling Stones and U2 have found a safe haven for their holdings in the Netherlands, very often in Amsterdam. Several law firms and tax advisers that can facilitate the holding companies.
The organistation promoting the Dutch fiscal climate is the Netherlands Foreign Investment Agency (NFIA). The agency also promotes the advantage for international companies to obtain tax rulings with the Dutch tax Authority. Tax lawyers can negotiate a tax ruling to establish which part of the profits of a company is subject to tax in the Netherlands.
The Netherlands have a serious marine maritime history, which has developed in substantial yacht building industry. The Dutch built excellent motor yachts and sailing yachts of the highest quality. This has put The Netherlands in the lead in the production of super yachts and building of custom built yachts.
Dutch yards have gained World Fame
Some well-known Dutch yacht builders are Amels, Royal Huisman, Vitters, Claassen, Dedship and Royal Van Lent. Dutch Yacht Designers are also present in the world of super yacht design. The non-EU citizens and corporations can have a yacht built in Holland against zero VAT tax rate under the condition the yacht is exported directly outside the EU.
Project management at Dutch yards
The owner can have himself represented by a project manager in Holland, that supervises the building of the yacht. A Project manager when building aYacht in the Netherlands is great support for the Owner who resides abroad. Our firm in Amsterdam has been involved in contracts for yacht building in The Netherlands, including some super yachts. A proper yacht building contract is necessary.
Top Yachting Contract for Great Designs
The owner should be protected against financial problems of the yard, bankruptcy, suspension of payment, arrest on the yacht, et cetera. Other subject to cover are warranties, limitation of liabilities, extra orders, change orders, insurance, certificates, et cetera. The yacht contract should protect the owner financially for his investments in the yacht. The owner should obtain ownership of all parts and components the yard orders for the yacht.
Security Provisons in Yachtbuilding Contract
The ownership of the hull and unfinished yacht should also be vested in the owner as soon as possible. When necessary, a security right can be established on the unfinished yacht at the yard. Because of the peculiarities of Dutch law, it is important to instruct a lawyer in the Netherlands to review any contract the owner enters into. Dutch contract law is not similar to anglo-saxon contract law, although the differences should not be exaggerated. As a Dutch Yachting Lawyer I can help you out there.
Disclosure in Dutch Court Procedures
Pre-trial discovery works different in the Netherlands then e.g. the US of UK. It is possible to hear witnesses, obtain proof from other parties, get experts appointed by the Dutch Court, et cetera. A Dutch attorney can organize the pre-trial discovery in the Netherlands.
Getting Witnesses to Court in the Netherlands
Article 162 of The Dutch Code of Civil Proceedings gives the possibility of the provisional examination (preliminary hearing) of witnesses. This means that the Dutch attorney of any party can call witnesses to the court to be heard, before it decides to commence legal proceedings against an other party. By doing so, this party will have the opportunity to estimate – on the basis of the statements of the witnesses – its chances in legal proceedings, and to decide whether or not to commence legal proceedings. Within the frame of these preliminary hearings, the court can be requested to order the other party to have its accounts, records and documents inspected by an independent external expert (e.g. a certified auditor or accountant).
Appointing Dutch Court Expert
The Court can also appoint an expert do initiate pre-trial expertise. A Dutch attorney can file a request for this appointment of an expert. To obtain appointment of the expert by the Court it is not necessary that a claim is filed or a procedure is already pending. It may be important to obtain expert evidence. Dutch Courts tend to follow the report of expert appointed by teh Court.
Dutch Court Order for Investigation
The Dutch Code of Civil Proceedings does not know proceedings to get pre-trial inspection of accounts, records and documents (electronic records and documents included). According to the law, such an inspection can only take place during legal proceedings. However, if evidence (documents, records, bank statements, e-mails et cetera) is kept by a party and the plaintiff has a legitimate interest to obtain this evidence then Article 843a of the Dutch Code of Civil Proceedings allows summary proceedings to obtain a court order for obtaining (copies of) this evidence.
International jurisdiction Netherlands Court over civil and commercial matters (principal rule)
A Dutch attorney can file claims with the Dutch Courts based on property law, the law of obligations, the law of contracts, the law of tort or on intellectual property rights. The claim has to be brought before a Dutch court by filing a Writ of Summons at the Registry of the court. In the Writ of Summons the defendant is invited to appear in the Dutch Court on a specific day.
The Dutch court has jurisdiction if the defendant has his domicile or habitual residence in the Netherlands (the ‘forum rei’ rule). The domicile and habitual residence of commercial partnerships and legal persons are the Municipality that is appointed as seat of the commercial partnership or legal person and the place where its head office is actually located, respectively.
International jurisdiction Dutch Court over civil and commercial matters (alternative rules)
The Duch Code of Civil Procedure offers alternative criteria for jurisdiction with regard to legal proceedings initiated by a Writ of Summons, regardless of the domicile or habitual residence of the defendant. These criteria independently create jurisdiction with the Dutch court has jurisdiction. These rules determine legal claim is linked in such a way to the territory of the Netherlands that jurisdiction of the Dutch court is justified.
Filing a Claim with Dutch Court
The Dutch attorney can also file a claim with the Court in the Netherlands in matters concerning:
- contractual obligations, that have been performed or must be performed in the Netherlands;
- an individual employment agreement or an agency agreement if the work is or used to be performed in The Netherlands;
- an individual employment contract, if the work is performed temporarily in The Netherlands, concerning rights of action with regard to conditions of employment and labour conditions referred to in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
- consumer contracs involving a consumer who has his domicile or habitual residence in the Netherlands and an opposite party who pursues commercial activities or his trade of profession (also) in the Netherlands;
- obligations arisen from a tortious act, if the event that has caused the damage has taken place or may take place in the Netherlands;
- real property rights in, as well as lease and farm lease agreements to immovable things located in the Netherlands (however, not over claims derived from a sale agreement with regard to immovable property in the Netherlands);
- estates of a deceased natural person, if the last domicile or last habitual residence of the deceased was located in the Netherlands;
- the validity, nullity or dissolution of commercial partnerships and legal persons established in the Netherlands;
- legal claims and issues related to a bankruptcy, suspension of payment under a moratorium or the Debt Repayment Scheme for Natural Persons that has been proclaimed or granted in the Netherlands.