NETHERLANDS Law and Practice Contributed by: Coco van Zuiden, Marijn Bodelier, Sabine Schoute and Simone Wijngaard, Greenberg Traurig, LLP
2.5 Typical Representations and Warranties
2.7 Soil Pollution or Environmental Contamination A buyer of a real estate asset can be responsible for soil pollution or environmental contamination of a property even if the buyer did not cause the pollution or contamination. The extent of the responsibility depends, inter alia, on the type of real estate, when the soil pollution was caused and whether any decisions have already been taken by the competent authority with respect to the soil pollution. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law In order to ascertain the permitted uses of a par - cel of real estate under applicable zoning or plan - ning law, a buyer can consult a publicly available website on which the relevant environment plans that detail the permitted use are shown. It is pos - sible to enter into development agreements with the competent authority to facilitate a project, with the caveat that such agreement generally does not guarantee that the project will be per - mitted because the competent authority always reserves its rights and obligations under public law in these agreements. 2.9 Condemnation, Expropriation or Compulsory Purchase Governmental taking of land, condemnation, expropriation, or compulsory purchase is pos - sible in the Netherlands. The general process of expropriation is that the competent authority takes an expropriation decision, which must be confirmed by the district court. Further appeal is possible against the judgment of the court with the Administrative Law Division of the Council of State. Once the expropriation decision is irrevo - cable, a notary will transfer title to the land to the government. The compensation that the authori - ties have to pay in relation to the expropriation is determined in a separate civil court procedure.
Besides case-specific warranties, it is common for the Sale and Purchase Agreement (SPA) for commercial real estate transactions to contain a set of more or less “standard” other warranties. The number and scope of these other warran - ties obviously depend on the type of transaction agreed. In an “as is, where is” transaction, the SPA usually contains title warranties and only a few others, whereas the warranties in a more balanced SPA are usually quite extensive. In the latter case, the subjects commonly covered include: • legal title; • leases; • other agreements that will or will not be trans - ferred to the purchaser; • environment plans (previously zoning plans); • environmental permits; • legal proceedings, if any; • any claims of contractors and other third par - ties; and • the due diligence documentation provided by the vendor. The SPA often contains provisions limiting the vendor’s liability relating to (i) the liability period, (ii) the maximum amount of any such claims, and (iii) thresholds for filing a claim. Warranty and indemnity (W&I) insurance poli - cies can also be part of a commercial real estate transaction. 2.6 Important Areas of Law for Investors See 1.1 Main Sources of Law .
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