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.
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.
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.