Short Introduction to Dutch

land law in comparative

perspective
Gustaaf Reerink, Ph.D.
greerink@abnrlaw.com

FH TRISAKTI 1 October 2016

Introduction

Background

Short introduction to Dutch land law

Land and accession

Real Property (onroerend goed)
Land
Non-mined minerals contained therein
Plants unified with land
Buildings and works that are
permanently unified with the land,
either directly or through unification
with other buildings and works.
Vertical accession (netrekking)-fixed
vs movable

Types of right land

I. Real Rights/ rights in rem (absolute
rechten)
a. Paternal right (moederrecht)
Non-mined minerals contained therein
b. Residual rights (beperkte rechten)
Right co-ownership (mandeligheid)
Right of long leasehold (recht van erfacht)
Right of superficies (right van opstal)
Right of usufurcht (recht van vruchgebruik)
Apartement right (apartementrecht)

Types of right land (cont.)

c. Security right
Right of hypothec (recht van hypothek)
Several rights can be established on one
piece of land
The rght of summary execution
Preffered creditor
II. Personal right on land (relatieve van
rechten)
Lease (recht van huur)

Acquisition of land rights

Universal succesion of title, for

instance:
Inheritance

Particular succesions title

Transfer
Adverse possesion
Expropriation

Inheritance

Declaration of inheritance (notary

deed), needed for unmarried owners
of which one passes away

Registration leads to change of

name owner of land in the registry

Registration in public registry no

mandatory

Transfer of lands rights

Notary deed

Registrations in public registry

Adverse possession

Uninterrupted possesion for 10

years

Good faith: rightholder should

reasonable consider himself as a
rightholder
For instance: obtain land form a party
who is unauthorized

Public registry
A. Negative system
Registration has taken place, but no
transfer of ownership (for instance
because there is no legal title)
No registration but right has been
obtained (for instance in case of
adverse possession, inheritance)

Public registry (cont.)

B. Protection againts incompleteness and
incorrectness
Registration of acquisition of a right on land through
particular transfer of succession, while other fact
relating to land has not been no registered, then this
fact cannot be held againts the party obtaining the
land, unless has was aware of this fact.
The incorrectness of a fact registered by notary deed
cannot be held againts the party obtaining the land,
unless he was aware to this notary could have been
aware of it by checking the public registry.

Public registry
C. Land and building tax based on
information included in the land
registry
D. Registration of more owners (for
instance spouses) of one land plot is
possible.

Limitations on land rights

A. Use by the owner of land
Should not be in contradiction with the right of
others
Should not be contrary to the prevailing laws
and regulations
Should not be againts unwritten law
B. The owner of land is not allowed to cause
nuissance to the owners of neighboring land,
such as by spreading noise, vibration, smell,
smoke or gases, taking away light or air, to the
extent this constitutes an unlawful act.

Limitations on land rights

(cont.)
C. Spatial plans
At national, provincial and municipal level
D. Permits/licenses
Building permit
Construction permit (for non-buildings)
Use permit (fire preventions)
Environmental permit
Permit to cut trees
Since 2010: Environmental license

Limitations on land rights

(cont.)
E. Government can limit ownership rights only
on the basis of generaly applicable rules
F. Lower Government
Cannot deny full enjoyment of the owner of land
(for instance by requiring owner to condone
public facilities)
Cannot take away from the owner an authority
that has been explicitly granted on the basis of
law, for instance authority of disposition over
property (only allowed on the basis of laws
anacted by parliament).

Limitations on land rights

(cont.)
G. Obligation to condone
Can be imposed by the central
government at request prvate
developer
Related to public works, examples:
electricity grid, gas pipes
Procedures similar to expropriations (to
be discussed)

Expropriation of land
A. Public interest
Infrastructure
Spatial development and social housing
B. Spatial plan or building plan
C. Right of self realisation
D. Voluntary arrangement: sale/ purcase of
land
E.Compensations
Determined in money
Compensation for loss of income/capital

Expropriation of land (cont.)

F. Administrative procedure
Municipal council submits request to the
central government
Central government prepares draft decision,
to which interest parties may object
Decision whithin 6 months
G. Court Procedure
District court: approves the decission or not
and determines compensation
Cassation to the Supreme Court

Conclusion
Differences land law of the
Netherland and of Indonesia
Accession
Types of rights
Adverse possesion
Similarities?