DISPUTES ABOUT RESIDENTIAL PROPERTY
Owning a home is an important purchase for most people, for which a lot of money is borrowed. It is also important for sellers that everything goes well, especially if they move on and take the sales proceeds with them to their next home. Unfortunately, legal problems surrounding housing are common. Our office has a lot of experience in this area of law.
Sale of a home: if the buyer does not purchase
It is a very common legal problem. The sale is complete, the purchase contract has been signed. But if the house has to be transferred at the notary, that is not possible: the buyer does not have the money. If the purchase contract contains a financing condition and this condition is invoked in good time, then the sale is annulled and the seller can do little more. However, it also happens that the reservation has not been invoked or has not been invoked in time. Then the buyer is bound by the contract. The seller will then usually engage a lawyer to collect the contractual penalty (usually 10% of the purchase price). That is the “price” of the default, to which there are exceptions.
Home sale: if the seller does not transfer ownership
We are also sometimes called in by a buyer who notices that the seller (for whatever reason) is ultimately unwilling to transfer the ownership to the notary. The buyer can then request compliance with the purchase agreement from the court. This is usually done through summary proceedings . That is because haste is required. If the buyer finances the home with a mortgage, which is often the case, the bank’s offer may expire after a while and then the buyer in turn has the problem of not being able to pay. Good legal guidance is therefore a must.
Because the financial interests and the potential damage in the purchase and sale of homes are very high, legal proceedings about real estate are often preceded by conservatory or delivery attachment. A lawyer requests this from the court. The bailiff registers the attachment at the Land Registry. The result is that the house can no longer be delivered to another person. Suppose a house is sold twice; the seller ignores the first contract of sale because he can get a higher price. Then the first buyer can (of course) request fulfillment because he has the oldest right. In such a situation, it is wise for him to seize the property to prevent the seller from transferring the house to the second buyer.
Problems around mortgage seller
During the credit crisis, many houses were flooded, and there are still houses with undervalue, despite the increased house prices. As a result, houses are difficult to sell. The mortgage banks can stop the sale if a residual debt remains. Our office has nevertheless succeeded in helping homeowners to cancel (cancel) the mortgage so that the house can still be sold, at a loss. There are cases in which selling at a loss is preferable to forced occupancy. For example, if the homeowner is dependent on debt restructuring. This case shows that mortgage law is not as strong as many people think and that banks can be indirectly forced to take a loss.
The house is seized
What also regularly occurs is that a sale transaction of a property cannot be settled properly because the property is attached at the initiative of a creditor of the seller. This can be a “forgotten” attachment that has been there for a long time, as well as an attachment that is levied at the last minute by a creditor of the seller if the seller finds out about the sale of the home. Our office is familiar with this problem from all sides; we have dealt with this type of dispute from the perspective of the buyer who wants performance and does not want to be burdened by the seller’s debts, we know the situation from the perspective of the creditor who gets a chance to fulfill his claim because the proceeds of the sale of the house become available, and we know the situation from the perspective of the seller who is caught between his obligation to deliver the house and the obligation to pay the debt.
After the purchase: property has a defect
The “conformity requirement” applies to the sale of real estate: sellers have an obligation to report defects and if hidden defects come to light after the sale, the seller owes compensation. But it is not the case that (old) homes are sold with a guarantee: the buyer also has an obligation to investigate. In lawsuits about defects, the court must answer several questions: has a disclosure obligation been violated, did the buyer have an obligation to investigate, does an “age clause” apply, such as in the case of a house to be renovated, or vice versa: has the seller given a guarantee? that the relevant defect is not present (for example, if he has indicated in the sales information that the relevant part of the home has been renovated). Buyers seeking damages in a lawsuit have several options. A variant is that the purchase agreement is annulled due to error with reduction of the purchase price. This reduction is then equal to the costs of repairing the defect. The amount must be refunded by the seller.
Joint ownership: division
Homes and other registered property (apartments, large ships) can be jointly owned. Joint ownership of real estate can arise through a joint purchase (in the case of a relationship or a marriage, but also an investment property or an office building of partners) and can also arise through later developments (children who inherit a property from a deceased person, a marriage in community of property). In all these cases, the desire may arise to divide the property while another owner (“shareholder”) does not want to do so. Our office is a specialist in this type of distribution procedure. Read the overview article here .
Other real estate issues
We also have experience with other legal issues related to real estate. Think of neighborly law (prohibition of causing nuisance, such as removing sunlight ); nuisance between neighbours, which can even lead to compensation; nuisance within an Owners Association which can lead to a contact ban ; tenancy law ( living space and commercial space), and so on.