Buying and selling real estate
Buying and selling immovable property (for example business premises or a dwelling) is a large investment for many individuals and companies. It is therefore important to have the purchase and sale of immovable property run smoothly and preferably prevent discussions arising in advance.
Purchase of business premises
If a company has a sufficient reserve fund then it can be in the entrepreneur’s interest to purchase business premises instead of leasing, as this will constitute a direct investment in the company. Any increase in value of the business premises at a top location can be a suitable method to protect the capital and reserves of the company. Although an entrepreneur can choose to have new business premises built, it can be beneficial for tax purposes to purchase business premises that are older than two years. However, in case of the purchase of older business premises, there are the costs of the estate agent and civil-law notary, as well as costs regarding transfer tax. It may be possible to conclude a corporate mortgage with a bank if the company presently has insufficient capital and reserves, but is in the process of growing.
Resolutive condition in case of purchase of immovable property
If the buyer does not yet have any security for financing at the drawing up of the agreement in writing, a resolutive condition can be included in the agreement. The purchase will in that case not come into effect if this is not financed. It is important that this is properly recorded and substantiated with evidence. If you fail to do so, you will be forced to purchase the property at a later date or to pay a financial penalty of (usually) 10% of the value of the property.
Purchase of dwelling
The purchase of a dwelling by a private purchaser must always be recorded in writing. If the purchase is only agreed upon orally, this purchase will not be valid. The seller as well as the purchaser of a dwelling can then argue that the oral purchase agreement is not valid and therefore no purchase has come into effect. The purchaser has a cooling-off period of three months from the signing of the purchase agreement in which to decide whether or not to purchase the dwelling. Furthermore, in case of the purchase of a dwelling, it applies if the purchaser has not furnished security for the financing that it is advisable for the purchaser to include a resolutive condition in the purchase agreement. If the purchaser fails to do so, the purchaser may be forced to purchase the dwelling at a later date or to pay a financial penalty.
Sale of immovable property
It is important for the seller as well as the purchaser of immovable property to record the sale of immovable property, such as a dwelling or business premises, in writing. An oral agreement is not valid.
Often, at the time of the drawing up of the agreement in writing, the purchaser does not yet have certainty with regard to financing. In virtually all agreements, a resolutive condition is included for this purpose. If you, as a seller of immovable property, are confronted with a purchaser who does not have financing, it is important to verify this and, if necessary, to give the purchaser notice of default and thereupon to terminate the purchase agreement. This notice of default applies as a condition for the claim that the purchaser must pay the contractually recorded financial penalty, which usually amounts to 10% of the value of the immovable property. Since the courts assess the notice of default in a critical manner, it is advisable to obtain legal advice about this. Asselbergs & Klinkhamer Advocaten would like to assist you.
It is important in the event of purchase or sale of immovable property to ask the right questions and to properly record the arrangements for both parties, in order to prevent future discussions when possible. A common point for discussion in practice concerns, for example, the removal of asbestos. The costs of asbestos removal often result in discussion regarding the suitability of the dwelling and that which the seller could expect. Asselbergs & Klinkhamer Advocaten would like to advise you with regard to your legal position. Our lawyers have a wealth of experience in everything concerning the purchase and sale of immovable property. If necessary we can bring legal proceedings on your behalf.
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