Real Estate Alert – the Netherlands (December 2021)

Purchase protection Act (Wet opkoopbescherming)

On 6 July 2021, the Dutch Purchase protection and extension of temporary letting Act (Wet opkoopbescherming en verruiming tijdelijke verhuur) was passed by the Dutch Senate. Currently, it is expected that the purchase protection will enter into effect on 1 January 2022 by an amendment of the Housing Act (Huisvestingswet).

In summary, the Act provides Dutch municipalities the opportunity to designate residential areas within their municipal area for purchase protection. This requires an amendment of the local housing ordinance (huisvestingsverodering). As a result, the houses in such area(s) may not be rented out during four years after the date of registration in the public registers of the deed of transfer to the new owner relating to such houses, unless the municipality has granted the owner a permit thereto. Such permit will only be granted in specific circumstances, such as:

1. leasing out to first or second degree family

2. leasing out for a maximum of one year by residents who want to stay abroad for a year, for example; and

3. leasing out of residential real estate that is inseparably linked to business premises (such as offices or shops).

Please also see our previous Real Estate Alert.

Status in different Dutch municipalities

Meanwhile, various municipalities, such as Utrecht, The Hague and Tilburg, have announced that it is their intention to implement the purchase protection as soon as possible, ie as of 1 January 2022.

The municipality of Amsterdam has already laid down its proposal for an amendment of the Amsterdam Housing Ordinance (Amsterdamse huisvestingsverordening) for the introduction of purchase protection in a proposal that has been available for consultation since the beginning of November. In short, the municipality of Amsterdam intends to introduce purchase protection for the entire city for residential real estate with a value in accordance with the Property Assessment Act (WOZ) of up to €512,000. This is approximately 60% of the residential real estate in Amsterdam currently occupied by an owner. Residential real estate which was not rented out for six months prior to purchase, such as homes which have been vacant for longer than six months, are also covered by the scheme, insofar as they have a property value of less than €512,000. The proposal can be found by clicking on this link. The proposal is open for comments until 15 December 2021.

The municipality of Haarlem is also planning to introduce purchase protection as of 1 January 2022. The municipality of Haarlem is currently preparing an amendment to the local housing ordinance for this purpose, so that by 1 January 2022, residential real estate in the entire municipality of Haarlem with a WOZ value of up to €389,000 will fall under the purchase protection.

In addition, the municipality of Rotterdam has also announced its intention to introduce purchase protection as of 1 January 2022 for residential real estate with a WOZ value of up to €355,000 located in 16 specific districts of Rotterdam. This concerns the districts of Bergpolder, Blijdorp, Bloemhof, Carnisse, Groot-IJsselmonde, Hillegersberg-Zuid, Hillesluis, Kralingen-Oost, Kralingen-West, Het Lage Land, Middelland, Nieuwe Westen, Oud-Charlois, Oud-Mathenesse, Rubroek and Tarwewijk.

Existing real estate versus newly developed real estate

The purchase protection will apply in addition to any other existing measures taken by (some) municipalities to combat the 'buy-to-let' principle, such as a self-occupancy obligation (zelfbewoningsverplichting) or an anti-speculation clause (anti-speculatiebeding). For example, since July 2020, the municipality of Amsterdam has had a ban on leasing out (verhuurverbod) in place, which ban has since then been included in leasehold conditions (erfpachtvoorwaarden) for new releases of leasehold land.

Whereas purchase protection applies mainly to existing buildings, a self-occupancy obligation and an anti-speculation clause generally apply to newly developed real estate. Such measures can often only be imposed by municipalities if they are in a position to impose certain obligations on the developer of the new building in question (for example, because municipal land is involved in the project). Such obligations can then be included in an anterior agreement (anterieure overeenkomst), a purchase agreement or, in the case of leasehold (erfpacht), in the leasehold conditions. Generally, anti-speculation clauses and self-occupancy obligations apply for a certain number of years and are linked to a qualitative obligation (kwalitatieve verplichting) and/or a perpetual clause (kettingbeding) subject to a penalty, in order to also bind any successive owners of the property to these obligations.

As previously mentioned, there are still quite some unclarities regarding this act on numerous subjects, such as the interaction between the act and the ‘lease prevails over sale’ principle and such as the impact on already concluded sale purchase agreements with envisaged delivery after the act has entered into effect.

Should you wish to know more about this or about other recent (announced) changes for the Dutch real estate market, or if you have specific questions on your existing portfolio or otherwise, please do not hesitate to contact us.

> Please read our Dutch version here.