Apart from providing legal advice, a notaris (notary) also records agreements, either because the law requires it or it is in the parties’ request. The formal deed drawn up by a notary constitutes definite proof that the date and the parties’ signatures are correct. A notary is required to retain the original deeds and to issue the parties with certified copies.
The law requires a deed for a number of agreements and legal transactions such as transferring a property in the Netherlands and creating or cancelling mortgages. Normally, the procedures involved are as follows:
Lawful period to ‘think over’
This is known in the Netherlands as wettelijke bedenktijd. Through this act, a verbal agreement should be written down in a voorlopige koopakte (provisional purchase deed). This is valid for three working days so that the buyer can change her/his mind. During this period, you are legally allowed to turn down a property, and you can hire experts to inspect the property. Ask your agent for further details.
Agreement of sale
Once the deal has been made, the selling agent will draw up a koopakte (purchase deed) and will invite you to sign the purchase deed. Ensure that you have thoroughly and carefully read through the purchase deal. Do make sure that all the agreements are mentioned in the purchase deed before you sign. Only in Amsterdam is the notary involved in this part of the process and can help you with legal advice on judicial questions and terms of sales, etc. In the rest of the Netherlands the selling and purchase agent will do this part together with their clients.
Once all the parties involved have signed the deal, the notary will organise the transfer. He or she will draw up the akte van levering (the terms of delivery) for the handover. He or she will also help with the hypotheekakte (deed of terms and conditions of mortgage). The buyer is free to choose his or her own notary. The purchase deed includes a penalty clause in case any of the parties do not comply with its terms.
It is advisable to discuss the marital situation or registered partnership with the notary; it may have legal consequences while selling the property. A marriage or registered partnership in ‘general community of property’ means that all the property and debts of each partner are shared. The same holds true if you have an official cohabitation agreement older than five years, unless you have a notarised statement indicating otherwise (i.e. a prenuptial agreement or similar).
Once both the parties have signed the deed of purchase, the deal is closed and the property is technically yours. A verbal agreement is not binding. An important clause in the purchase deed is that the deed can be cancelled if the buyer cannot obtain the necessary finances – the financial clause. This financial clause has an expiration date normally after five weeks; within that period the mortgage has to be finalized. Between the provisional and the final purchase deed, which is usually on the day you get the key to the house, all details referring to the mortgage are finalised. Your mortgage provider will request an appraisal report (by an independent real estate agent) for assessing the value of the mortgage in relation to the value of the property.
The notary will register all deeds at the kadaster (land registry). This includes the leveringsakte (deed of conveyance) and the hypotheekakte (mortgage deed). All necessary papers will be drawn up by the notary, such as a deed of transfer. He or she will check all these papers for you.
Deposit or prepayment
A waarborgsom (deposit) of 10% of the purchase price or more has to be transferred by the buyer to the notary after the sale agreement has been made. In the meantime, it is wise to get a home inspection done by a technical expert. The deposit is made by the buyer to the account of the notary. A bank guarantee is also accepted as an alternative to a deposit. Before the final payment you can ask your agent to note down the meter readings and check the house to be sure that it has been vacated as agreed.
The levering or judicial transfer of ownership of the property is done by the notary on the day of the transfer mentioned in the purchase deal, and takes place at the office of the notary. The actual delivery of the property occurs when the keys are handed over.