Is appointment of a 'projectnotaris', under the condition that purchasing costs are payable by the purchaser, unreasonably onerous?
It is not uncommon for the civil-law notary to be appointed by the vendor, and not the purchaser, where the vendor is a property developer or housing association, for instance. The vendor than appoints one civil-law notary, known as a 'projectnotaris' (civil-law notary executing notarial deeds in housing projects), to execute the deed(s) of transfer of title in a project.
This is generally also accompanied by a transaction whereby the purchasing costs are payable by the purchaser, with the purchaser expected to pay the notarial fees, among other things. The Gelderland District Court recently rendered a judgment in preliminary relief proceedings on whether using a 'projectnotaris' in a transaction with purchasing costs payable by the purchaser places an unreasonable burden on the purchaser in question.
In the case before the court, the vendor was a housing association that always used a 'projectnotaris' appointed by it when selling properties. The intended purchaser was aware of this from the outset of the negotiations. The sales contract (a NVM contract) stated that the civil-law notary is appointed by the vendor and that the fees are to be borne by the purchaser. The purchaser openly disagreed with this provision, but nonetheless signed the (unamended) sales contract. The purchaser subsequently argued that the respective provision in the sales contract is an unreasonably onerous general condition because the purchaser would be obliged to enter into a contract with a third party (the civil-law notary).
It is true in itself that the starting point according to the law is that a general condition is unreasonably onerous if it obliges the counterparty to enter into a contract with a third party. This is a rebuttable presumption, however. The housing association argued that the stipulation can be reasonably demanded of the purchaser, since the law requires that the transfer of title to an immovable property be effected by means of a notarial deed. In addition, the appointment of a 'projectnotaris' is more efficient and economical from the housing association's perspective. Furthermore, the purchaser knew that the sale was subject to purchasing costs being payable by the purchaser, as this was made clear from the outset. The preliminary relief judge concurred and found in favour of the housing association.
The preliminary relief judge's decision is primarily a weighing of interests, with due regard for the circumstances of the case. It is clearly of importance that the purchaser was aware of the stipulation that there was a 'projectnotaris' whose fees would be paid by the purchaser and that there were multiple benefits for the vendor in appointing a 'projectnotaris'. The circumstances could also weigh in the purchaser's favour, of course. It seems advisable, prior to signing a sales contract, at a minimum to communicate clearly and where necessary to negotiate about the use and the costs of a 'projectnotaris'.
If you have any questions regarding this item, please contact Maaike Timmer or your regular Real Estate team adviser at Loyens & Loeff.