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
- 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
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,
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
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
- 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
- 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
- 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
d. the fact whether the possessor has taken
all other steps which a reasonable person in those circumstances would
- 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
- 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
- 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
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
- 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
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
- 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
- 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
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
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
Article 3:98 Transfer, encumbrance and waiver of limited
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
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
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
- 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
- 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
- 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
- 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