Written requirement

In order to better protect consumers in the housing market, a law was introduced in 2003 that the purchase of a house and apartment by a consumer-purchaser (private person) must be made in writing: the written requirement. In the previous period it was also possible as a consumer to buy a house verbally.

What is the writing requirement?

Written here means a purchase agreement signed by the buyer and seller and thus by both parties. This means that a confirmation of the agreements via whatsapp or e-mail, or a draft of the purchase agreement sent to you, is not covered by this. An oral purchase agreement is therefore not legally binding. It is mandatory that the recording of the agreement is in writing. Other legal rules to protect individuals are the legal cooling-off period of three days for the buyer and that a buyer cannot be forced to pay an amount in advance.

If the buyer is a consumer, the purchase must be made in writing for it to be valid. This also applies to the purchase/contracting agreement of a new-build home. Have you been selected for a new construction project or are you allowed to buy a lot? An important step is to put everything on paper. A consumer is understood to mean a person who is not acting in the course of a profession or business. The professional real estate investor or real estate broker can be held to an oral offer.

Offer and acceptance at home buying: Is a verbal agreement binding?

When the buyer and seller have reached agreement on the purchase price and other conditions, the purchase agreement is concluded. The deed of sale is also popularly referred to as ‘provisional deed of sale’. This name incorrectly ensures that no definitive purchase agreement has yet been concluded. That is indeed the case. In fact, there is no difference at all between a preliminary purchase agreement and a definitive purchase agreement.

Signing a purchase agreement has serious consequences. Rights and obligations arise from a deed of sale for both the buyer and the seller. The buying party has the obligation to pay and the right to take ownership of the property. This will only be possible at the notary after signing another document, the so-called deed of delivery, also a deed of transfer. The seller has the obligation to deliver and the right to be paid. If one party does not fulfill its obligations, the other contracting party can go to court and request a decision. This is often not necessary, because a fine can be agreed in the purchase agreement if a party is unable or unwilling to comply with the agreements made. Such a fine is immediately due and payable without the intervention of a court.

Purpose writing requirement

The purpose of recording the agreement in writing is to prevent misunderstandings about agreements as much as possible. Because everything is obligatory neatly on paper, it is possible to clearly demonstrate what has been agreed in the event of hassle. There are no formal requirements for the agreement. The contract is free of form, which means that in principle everyone and even a random private individual can make a purchase agreement themselves. Common sense goes a long way and all kinds of sample contracts are lying around on the internet. This is not recommended due to liability. Many brokers have legal knowledge and use standard purchase agreements, whether or not drawn up by a national trade association. A good notary or specialized real estate lawyer can also be helpful by drawing up the purchase agreement tailored to the wishes of both buyer and seller.

Legal rule to protect buyer

The written requirement is a provision intended to give special protection to private buyers of a house or apartment. The written requirement provides more clarity about whether and, if so, when a sale has been concluded. After actual receipt of (a copy of) the signed purchase agreement, the buyer even has a three-day reflection period to rectify a decision and to cancel the purchase without stating reasons.

The private seller is also protected

After the introduction of the new legal rules from 2003, there was a long period of uncertainty as to whether a seller who had not yet signed the purchase agreement could also invoke the article of the law. Sellers also wanted to be able to appeal and to be able to forgo an oral sale without color cracks.

This has been clarified by a decision of the highest court in the Netherlands. This is apparent from an important judgment of the Supreme Court on this subject. If there is an oral agreement about the sale of a home to a private individual and the seller refuses to cooperate in drawing up and signing the purchase agreement, the private seller can also rely on the fact that the oral agreement has no legal effect.

This means that a private seller or buyer who refuses to cooperate in signing a purchase agreement for a home cannot be forced to do so, because the law does not oblige him to do so. If an oral offer has been accepted, but no written agreement has been concluded, neither seller nor buyer has to pay compensation. Because not everyone knows this, some do try to recover damage, such as an already incurred valuation report or consultancy costs. Therefore, be careful with incurring external costs.

Schedule written requirement for the purchase of immovable property intended for residence*

* article 7:2 of the Dutch Civil Code and judgment of the Supreme Court (ECLI:NL:HR:2011:BU7412)