Dutch Civil Code

Book 3 Property law in general

Title 3.4 Acquisition and loss of property

Section 3.4.1 General provisions

Article 3:80 Acquisition under universal or particular title and loss of property rights
- 1. A person may acquire property under universal title or under particular title.
- 2. Property is acquired under universal title through inheritance by succession [acquisition of a share in the entire estate of a deceased person], through marriage in a community of property [intermixture of the two private estates of the spouses that have become one joint estate], through a merger of two or more legal persons as meant in Article 2:309 of the Civil Code [the estates of the involved legal persons are put together to form the new property of one (new) legal person], through a split up of a legal person as meant in Article 2:334a of the Civil Code [a legal person is split off of another legal person and acquires a proportional part of his estate] and through the approval of a transfer plan as referred to in Articles 3:159l, 3159p and 3:159s of the Financial Supervision Act.
- 3. A person acquires property under particular title through a transfer, a prescription, an expropriation (compulsory purchase) or through any other way provided by law in order to acquire specific types of property rights.
- 4. A person may lose property in the ways set for this purpose by law for each type of property.

Article 3:81 Creation and ending of limited property rights
- 1. A person to whom an independent and transferable property right (asset) belongs, is able to establish - within the limits of that right - the limited property rights which the law has made available for this purpose. He may also transfer his property right under reservation of such a limited property right, provided that he observes all legal requirements for a transfer as well as for the creation of this type of limited property right.
- 2. A limited property right comes to an end:
a. when the property right (asset) from which it is derived ceases to exist;
b. when the period for which it was established has expired or when a condition precedent, under which it was established, becomes fulfilled;
c. when it is waived (abandoned) by the limited proprietor (person entitled to it);
d. when it is terminated, provided that the right of termination has been granted by law or at the creation of the limited property right to the principal proprietor, the limited proprietor or to each of them separately;
e. when the same person becomes entitled to the principal property right (encumbered asset) as well as to the limited property right that has been derived from it (intermixture);
and in addition through other events set by law with the result that a limited property right of a specific type ceases to exist.
- 3. A waiver as meant in paragraph 2 under point (c) and an intermixture as meant in paragraph 2 under point (e) have no disadvantageous effects for persons who in their own turn have acquired themselves a limited property right in the ceased limited property right. An intermixture as meant in paragraph 2 under point (e) has no advantageous effects for those persons who have a limited property right in the encumbered asset and who had to respect the ceased limited property right.

Article 3:82 Dependant property rights
Dependent property rights follow in everything the property to which they are legally attached.

Section 3.4.2 Transfer of property rights and waiver of limited property rights

Article 3:83 Transferable property rights
- 1. Ownership rights, limited property rights and debt-claims are transferable, unless their nature or the law opposes to this.
- 2. The transferability of a debt-claim may be excluded by an agreement between the creditor and debtor.
- 3. All other property rights are only transferable where the law indicates so.

Article 3:84 Requirements for a transfer
- 1. The transfer of property requires a formal delivery*) pursuant to a valid legal basis by the person with power of disposition over that property.
- 2. The to be transferred property has to be defined sufficiently within the legal basis.
- 3. A juridical act performed with the intention to transfer property merely to provide security for a debt or performed without the intention of bringing the property into the patrimony (capital) of the acquirer, is no valid legal basis for a transfer of that property.
- 4. Where property is transferred in order to perform a conditional obligation, that property has always been acquired subject to the same condition as that obligation.

Article 3:85 Transfer of property for a fixed period or at a future date
- 1. An obligation to transfer property just for a fixed period of time, is regarded to be an obligation to establish a usufruct on that property on behalf of the receiver during that period of time.
- 2. An obligation to transfer property at a future date, is regarded to be an obligation to transfer this property immediately and to establish simultaneously a usufruct on it on behalf of the alienator.

Article 3:86 Lack of power of disposition (movable property and debt-claims to order or bearer)
- 1. A transfer of a movable thing or of a debt-claim to order or to bearer in accordance with Article 3:90, 3:91 or 3:93 by an alienator without power of disposition is nevertheless valid if the transfer was not performed gratuitously and the acquiring party acted in good faith.
- 2. Where a movable thing or a debt-claim to order or to bearer has been transferred in accordance with Article 3:90, 3:91 or 3:93 on another than a gratuitous basis, while it was encumbered with a limited property right of the existence of which the acquiring party was not aware nor should have been aware at the moment of the transfer, then this limited property right shall cease to exist immediately or, in the event of a transfer as meant in Article 3:91, shall cease to exist under the condition precedent that applies to the transfer itself.
- 3. The owner of a movable thing who has lost possession of it because it was stolen from him may, in spite of the previous paragraphs, always claim his property back from every possessor within three years after the theft, unless:
a. the stolen object has been acquired by a natural person who, when he acquired it, did not act in the pursuance of his practice or business, and who had received it from an alienator who sells these or similar objects regularly to the public making use of a business premises destined for that purpose and who acted, when he passed to stolen object to the acquiring party, in the conduct of his practice or business, yet not as an auctioneer;
b. or the stolen object concerns money or negotiable documents for a debt-claim to order or to bearer.
- 4. The provisions in Articles 3:316, 3:318 and 3:319 for the interruption of a prescription of a right of action (legal claim) apply accordingly to the three year-period mentioned in the previous paragraph.

Article 3:86a Protection of cultural heritage
- 1. Article 3:86 cannot be invoked against a Member State of the European Union or against a State which is a party to the Agreement on the European Economic Area insofar this State claims the return of a movable thing, which, under the national law of that State, belongs to its cultural heritage as defined in Article 1 under 1 of Directive no. 93/7/EEG of the Council of the European Communities of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State (PbEG L 74), provided that a cultural object in the sense of that directive has been removed unlawfully out of the territory of that State.
- 2. Article 3:86 cannot be invoked against a person who - as its owner - claims the return of a movable thing which, at the time that it was lost, had the status of protected object under the Act on the Conservation of Cultural Heritage or which has been removed outside the territory of the Netherlands, although this was prohibited under Article 14a of that Act. The person who, at that moment, was mentioned as the owner of this movable thing in the list of protected objects or in an inventory list as meant in Article 14a, paragraph 2 of that Act, is considered to have been the owner of that thing at that moment.
- 3. The court which acknowledges a legal claim as meant in paragraph 1, grants to the possessor of the movable thing a reasonable financial compensation, to be determined with due observance of all circumstances, but only if the possessor has acted with due care at the acquisition of the thing. The same applies if the court acknowledges a legal claim as meant in paragraph 2, unless it would have been possible to claim the return of the thing at relevance of Article 3:86 paragraph 3 without paying any compensation.
- 4. The financial compensation includes at least the amount indebted to the possessor by virtue of Article 3:120 and 3:121. It is paid at the return of the movable object.

Article 86b Protection of cultural heritage under the 1970 UNESCO-Convention
- 1. Article 3:86 cannot be invoked against a State that is a party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, concluded at Paris on 14 November 1970, nor against the proprietor, if this State or proprietor files (has filed) a legal claim on the basis of Article 4 of the Implementation Act for the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property as referred to in Article 1011a of the Code of Civil Procedure for the return of a movable thing (object) in the meaning of that Article.
- 2. The court that awards a legal claim as referred to in the previous paragraph, shall grant the possessor a fair compensation in accordance with the circumstances if he has observed the necessary diligence (prudence) at the acquisition of the movable thing, unless the thing could have been claimed back without compensation under the application of Article 3:86.
- 3. The compensation includes in any event what is indebted to the possessor by virtue of Articles 3:120 and 3:121. It is paid upon the formal delivery of the movable thing.

Article 3:87 Obligation to provide information about the alienator
- 1. An acquiring party who is asked within three years after the acquisition who has alienated a property to him, must without delay provide information which makes it possible to retrieve this person or information which at the time of acquisition would have been sufficient for this purpose. If he does not meet this obligation, he cannot appeal to the protection that Articles 3:86, 3:86a and 3:86b provide to an acquiring party who acted in good faith when he acquired property from someone who lacked power of disposition.
- 2. The previous paragraph does not apply with respect to money.

Article 3:87a Observance of the necessary diligence (prudence) at the acquisition of a cultural object
- 1. To determine whether the possessor has observed the necessary diligence (prudence) at the acquisition of a cultural object as meant in Article 1 of the Implementation Act for the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, account is taken of all circumstances at the acquisition, especially of:
a. the capacity of the parties;
b. the price paid;
c. the fact whether the possessor has consulted any reasonably accessible register of stolen cultural property and any other relevant information and documentation that he reasonably could have obtained, and whether the possessor has consulted accessible agencies and institutions;
d. the fact whether the possessor has taken all other steps which a reasonable person in those circumstances would have taken.
- 2. A trader (dealer) as defined in Article 437 of the Penal Code has not observed the necessary diligence (prudence) at the acquisition of a cultural object as referred to in Article 3:87b, paragraph 2, if he has failed:
a. to verify the identity of the seller;
b. to demand a written declaration of the seller that he is competent to dispose of the object;
c. to record in the register that is kept by this trader (dealer): the origin of the cultural object, the names and address of the seller, the purchase price paid to the seller and a description of the object;
d. to consult the registers for stolen cultural property which in the given circumstances in view of the nature of the cultural object are eligible for consultation.
- 3. An auctioneer who, upon collection (acceptance) of a cultural object for public sale, does not act in conformity with the diligence requirements of paragraph 1 and 2 or who returns this cultural object to the person who has offered it to him to sell it by auction, commits a tortious (unlawful) act against those who may file a legal claim for the return of that object as meant in Article 3:86d.

Article 3:88 Lack of power of disposition (immovable property and debt-claims to name)
- 1. A transfer of registered property, a debt-claim to name (e.a. a normal debt-claim without any certificate) or another property right not subject to Article 3:86 by an alienator without power of disposition is nevertheless valid if the acquiring party acted in good faith and the lack of power of disposition results from the invalidity of an earlier transfer, which invalidity itself was not caused by a lack of power of disposition of the alienator's predecessors in title.
- 2. Paragraph 1 cannot be invoked against legal claims (rights of action) as meant in Articles 3:86a, paragraph 1 and 2, or 3:86b, paragraph 1.

Article 3:89 Formal delivery of immovable property
- 1. The formal delivery, required for the transfer of immovable property, is performed by drawing up a notarial deed of transfer for this purpose between the parties, followed by its registration in the public registers for immovable property. Both, the acquiring party and the alienator, may hand over the notarial deed of transfer to the keeper of these public registers for registration.
- 2. The notarial deed of transfer must accurately mention the legal basis for the transfer; secondary conditions which do not concern the transfer itself, do not have to be recorded in the this deed.
- 3. When at the occasion of the drawing up of the notarial deed of transfer a person acts as a representative of one of the parties, the authorisation for representation (procuration) must be laid down accurately in the notarial deed of transfer.
- 4. The rules of the present Article apply accordingly to a formal delivery which is required for the transfer of other registered property than immovable property [like registered ships and aircraft].

Article 3:90 Formal delivery of movable property
- 1. The formal delivery, necessary for the transfer of non-registered movable things that at that moment are in the possession of the alienator, is performed by transferring the possession of that thing to the acquiring party [by enabling him to exercise the same actual control over the thing as the alienator could; see Article 3:118].
- 2. When the alienator remains exercising the actual control over the movable thing after it has been delivered formally, the formal delivery shall only have effect against third parties with an already existing real property right in that movable thing as from the moment on which that thing has come in the actual power of the acquiring party, unless the proprietor of the already existing real property right has agreed with the alienation.

Article 3:91 Transfer under a condition precedent
The formal delivery of a thing as meant in the previous paragraph in order to fulfil an obligation to transfer an asset under a condition precedent, is performed by enabling the acquiring party to exercise the actual control over the transferred thing.

Article 3:92 Retention of title
- 1. Where an agreement has the intention, in regard of a non-registered movable thing which the alienator has brought in the actual power of another person, that the alienator witholds the right of ownership in that thing until a performance, indebted by that other person, is performed, this agreement is considered to be entered into under a condition precedent of full satisfaction of that indebted performance.
- 2. The alienator can only validly stipulate such a retention of title for things he has to deliver if this is done in relation to the payment of debt-claims on a counter performance due by the acquiring party for things that have been delivered or will be delivered to him by the alienator pursuant to the same or another agreement or for services performed or to be performed for his benefit by the alienator pursuant to such an agreement as well as with respect to compensatory debt-claims indebted by him to the alienator for failing to perform such agreements. As far as a condition in an agreement is null and void because it is not in conformity with the previous sentence, it has never been stipulated according to law.
- 3. A condition precedent, as mentioned in paragraph 1, is regarded to be fulfilled also when the debt-claim of the alienator to obtain the agreed counterperformance is settled in another way than through an actual acquisition of this specific counterperformance or when the acquiring party is released from his obligation to this end on account of Article 6:60 or when the right of action of the alienator to claim the counterperformance has become prescribed on account of the expiry of a time-limitation. Unless parties have agreed otherwise, the same applies when the alienator has waived his right to claim the agreed counter performance.

Article 3:92a [repealed on 01-05-2008]

Article 3:93 Formal delivery of debt-claims to order or to bearer
Where the negotiable document, related to a debt-claim to bearer, is under the actual control of the alienator, the formal delivery of such a debt-claim, necessary to transfer it, is performed by handing over this document to the acquiring party as referred to in Article 3:90, 3:91 and 3:92 and with the impact as mentioned there. Where the negotiable document, related to a debt-claim to order, is under the actual control of the alienator, the same applies to the transfer of such a debt-claim, on the understanding that the formal delivery also requires an endorsement.

Article 3:94 Formal delivery of debt-claims to name c.a.
- 1. In situations other than those provided for in the previous Article debt-claims to be exercised only against one or more specific persons are delivered formally by means of a private or notarial deed, drawn up for this purpose between the alienator and the acquiring party, followed by the notice thereof given by the alienator or the acquiring party to the persons against whom the debt-claim is to be exercised
- 2. The formal delivery of an existing debt-claim to be exercised only against a specific person whose identity, however, is still unknown at the moment on which the private or notarial deed is drawn up, has retroactive effect to that moment, if the necessary notice of the transfer is made with due speed as soon as the identity of this person has become known.
- 3. These debt-claims [debt-claims to name] can also be delivered formally by means of a notarial deed or a registered private deed, drawn up for this purpose between the alienator and acquiring party, without giving notice thereof to the persons against whom these debt-claims are to be exercised, provided that these debt-claims already exist at the moment of formal delivery or that they will be obtained directly on the basis of an at that moment already existing legal relationship. The acquiring party can only invoke the formal delivery against the persons against whom these debt-claims are to be exercised after these persons have been notified of the transfer, either by the alienator or the acquiring party. For a party who has acquired a debt-claim which is delivered formally to him in accordance with the first sentence of the present paragraph, Article 3:88 paragraph 1 has only effect if his good faith is still intact at the time on which the notice meant in the second sentence was given.
- 4. The persons against whom the debt-claim is to be exercised, may demand that a written summary of the notarial or private deed and of its legal basis are handed over to them. These summaries must be certified by the alienator, but they do not have to include terms and conditions which are of no importance for other persons then the parties to the transfer themselves. When the legal basis is not put down in a notarial or private deed, a summary of its content must be presented in writing.

Article 3:95 Formal delivery of other property rights
Property not covered by Articles 3:89 up to and including 3:94 is delivered formally by means of a private deed, drawn up for this purpose between the alienator and the acquiring party, with due observance of Article 3:96 and Article 3:98.

Article 3:96 Formal delivery of a share in joint property
The formal delivery of a share in joint property is performed in the same way and with corresponding impact as the formal delivery of that property itself.

Article 3:97 Formal delivery of future property
- 1. Future property can be delivered formally in advance, unless it is prohibited to make it the subject of an agreement or it concerns immovable property.
- 2. A formal delivery in advance of future property has no effect against someone who has obtained this future property earlier on the basis of a prior formal delivery in advance. If it concerns a future movable thing, then it will only have effect as from the moment on which the acquiring party actually is exercising control over that thing.

Article 3:98 Transfer, encumbrance and waiver of limited property rights
All the provisions of this Section that relate to the transfer of property apply accordingly to the transfer, encumbrance and waiver of a limited property right in such property, unless the law stipulates otherwise.

Section 3.4.3 Acquisition and loss of property due to prescription

Article 3:99 Acquisitive prescription
- 1. Property rights in not-registered movable things and debt-claims to order and to bearer are acquired by a possessor in good faith after having the continuous possession of that thing or, respectively, of negotiable document for three years; property rights in other property are acquired by a possessor in good faith after having the continuous possession of the underlying asset that for ten years
- 2. Paragraph 1 does not apply to movable things which pursuant to the Act on the Conservation of Culture Heritage are qualified as a protected object or which form a part of a public collection or of an inventory as meant in Article 14a, second paragraph of that Act, provided that the possession of such an object has started after this qualification or during the time that the object was a part of the public collection or inventory as described here.
- 3. Paragraph 1 cannot be invoked against legal claims (rights of action) as meant in Articles 3:86a, paragraph 1, and 3:86b, paragraph 1.

Article 3:100 Taking possession of the estate of a deceased
He who has taken possession of the entire estate of a deceased person cannot acquire this estate or the assets (property rights) in it through prescription before the moment on which the proprietor's right of action to claim the estate has become prescribed.

Article 3:101 Start of the acquisitive prescription period
An acquisitive prescription period starts to run from the day after the one on which the possession has started.

Article 3:102 Continuation of the original acquisitive prescription period
- 1. Where a person has acquired under universal title the possession of an asset from another person, the original period for an acquisitive prescription continues to run on behalf of the new possessor.
- 2. The same applies to the possessor who in good faith has acquired the possession of someone else's asset on another basis than through an acquisition under universal title.

Article 3:103 Involuntary loss of possession
An involuntary loss of possession does not interrupt an already running acquisitive prescription period, provided that within one year either possession is regained or a legal claim has been filed which in the end will result in the recovery of possession.

Article 3:104 Interruption or extension of the acquisitive prescription period
- 1. When a running prescription period for a right of action (legal claim) to end another person's possession is interrupted or extended, then, with that, also the acquisitive prescription period is interrupted or extended.
- 2. For the purpose of the present and the next two Articles a prescription of a right of action (legal claim) includes the prescription of the right to enforce a judicial decision in which the legal claim to end another person's possession has been awarded.

Article 3:105 Acquisition by a possessor through an acquisitive prescription
- 1. He who possesses an asset (property right) at the moment on which the right of action (legal claim) to end that possession has become prescribed, acquires that asset, even if he did not posses it in good faith.
- 2. Where a person had lost possession before that moment, but regains it within one year after he had lost it or regains it as a result of a legal claim that was filed within that year, he is regarded to be the possessor meant in the previous paragraph.

Article 3:106 Ceasing of a limited property right
After the right of action (legal claim) of a limited proprietor against the principal proprietor to end a situation which is in conflict with his limited property has become prescribed, this limited property right ceases to exist as far as it cannot be exercised due to that conflicting situation.