GENERAL CONDITIONS NVM FOR PROFESSIONAL CLIENTS
The General Conditions NVM for professional clients have been established by the Dutch Association of Real Estate Agents and real estate experts NVM (Nederlandse Vereniging van Makelaars in onroerende goederen en vastgoeddeskundigen NVM).NVM.
The Conditions came into effect as of 15 February 2006.
The content of these general conditions corresponds with the General Conditions NVM for professional clients 2000, whereby Article 1 has been amended with the bold text. Sometimes parties other than NVM members state that the NVM General Conditions apply to their work. As in such case there is no connection whatsoever with the NVM, the NVM accepts no responsibility in this respect and no appeal can be made on the NVM or related bodies into such matters. Information on the NVM is available from the NVM office. his office can also answer any questions you may have on the Conditions, the members (if you wish to check whether someone is a member of the NVM), etc. t is also the appropriate contact address for any complaints or disputes.
3430 DC Nieuwegein
Telephone: +3130 6085185
I General conditions
II Services relating to making contracts
V Real estate management
I. General Conditions
- hese Conditions apply to services relating to real estate in the Netherlands, unless the client is a natural person who does not act in a professional or business capacity (consumer.)* Insofar as the contrary is not stated, real estate means real property and qualified rights thereon.
- The agreed fee and the additional costs are, unless explicitly otherwise agreed, exclusive of statutory turnover tax.
- NVM members shall carry out assignments they have accepted to the best of their ability and in the best interests of their client. Unless otherwise agreed, the NVM member may instruct others to carry out the work necessary for execution of the assignment, under his auspices..
- In the event an assignment is granted by more than one person each of them shall be severally liable for the amounts owed to the NVM member in relation to such assignment.
- In the event of death of the client, the assignment shall terminate on the date when the NVM member is given notice of the death. The provisions of Article II.24 apply mutatis mutandis.
- Claims relating to fees owing are payable if and as soon as the assignment has been carried out or is terminated for some other reason, unless the contrary appears from these Conditions, or the client and the NVM member agree otherwise. This also applies with regard to out-of-pocket expenses and costs. The client and the NVM member can also agree payment in advance or interim settlement of advances and costs. or interim settlement of advances and costs.
*These General Terms apply to the conclusion and fulfilment of an agreement regarding the instruction to provide services, which is concluded between a Consumer and an Estate Agent and which relates to immovable property situated in the Netherlands.
II. Services relating to making contracts
- Insofar as the contrary does not appear in this chapter, assignment means an assignment to provide services relating to the making of a contract concerning real estate.
- The NVM member shall ensure that the client possesses information regarding the service package of the NVM member, the rights and obligations ensuing from the assignment and the normal course of affairs for transactions relating to real estate.
- If the NVM member deems a party to be a client, but such party denies the existence of the assignment and the existence of the assignment does not appear from a document addressed to the NVM member and signed by the client, the NVM member shall lack any entitlement to payment in respect of fees, out-of-pocket expenses or costs, unless he can prove the existence of the assignment in some other way.
- Unless otherwise agreed, the following services, inter alia, shall be available to the client in relation to his assignment:
- discussions of and advice regarding the options of making the intended contract;
- evaluation of the value of the real estate in question;
- attention to legal, fiscal, architectural and other relevant aspects;
- advice on and the conducting of negotiations;
- supervision of the completion.
- The NVM member shall refrain from accepting an assignment relating to real estate in respect of which he already has been granted an assignment by another client. If it ensues from an ongoing assignment that the NVM member provides the client with services relating to real estate in respect of which he must simultaneously provide some service under the heading of another ongoing assignment for another client, and the providing of the service to one client would conflict with the interests of the other client, the NVM member shall consult, at his election, with each of said clients or with one of them. The NVM member shall in any event commence such consultation as soon as said clients have reached the stage of negotiation. The consultation should lead to the suspension or termination of one of the assignments. In such consultation the NVM member shall also discuss the option that the client whose assignment is suspended or terminated engages a colleague real estate expert. If a contract is made between the clients of the same NVM member, whether or not such is contrary to the above, the NVM member, in cases where the law does not prohibit the charging of a fee, only derive a right to such fee in respect of one of the clients.
- he assignment as such does not encompass any authority for the NVM member to make contracts on behalf of the client, although such authority can be granted in connection with the assignment or subsequent to the granting of the assignment.
- The client shall refrain from activities which could hinder the NVM member when carrying out his assignment or which could affect his activities. The client shall not make use of similar services of parties other than the NVM member except in the event express agreements to the contrary have been made. He shall not make any contracts outside of the knowledge of the NVM, nor shall he conduct any negotiations in this respect.
- If a client gives various NVM members an assignment, the provisions of this chapter apply in full to each of these assignments and the client shall therefore owe each of these NVM members compensation for out-of-pocket expenses, costs and fees, except insofar as express agreements to the contrary have been made with one or more of these NVM members.
- An assignment shall run for an indefinite period of time. It shall terminate by:
- performance by the NVM member;
- revocation by the client;
- Reimbursement by the NVM Member.
- The NVM member shall have carried out his assignment as soon as the intended contract has been made as a result of services provided by him. Whether the assignment has been carried out does not affect his obligation ensuing from the assignment to supervise the client in wrapping up the matter. For contracts for which the final making or the obligation to perform is, pursuant to a clause in the contract, dependent on a suspensive or dissolving condition, then the performance of the assignment shall also be dependent thereon. The NVM member may only return the assignment on substantial grounds. The following shall in any event be deemed substantial grounds:
- the situation described under Article II.5, second and following full sentences;
- disruption of the relationship between the NVM member and the client.
The revocation or return of an assignment must be effected in writing. The date of termination of the assignment shall be the date on which the NVM member or the client respectively receives the written notice of the revocation or return of the assignment or any later date set out in said notice. Upon termination or suspension of the assignment, costs can be charged in accordance with the provisions of Article II.23, 24 and 25. After the end of the assignment, broker fee obligations can arise in accordance with the provisions of Article II.16.
If a contract which has been made is dissolved (art. 7:2 BW) due to the use of the statutory cooling-off period, then the making of the contract does not involve the performance of the assignment.
Broker fee (Courtage)
- The client owes the NVM member a broker fee if a contract is made during the term of the assignment, even if the contract deviates from the assignment. This also applies if the contract is not the result of the services provided by the NVM member, unless the matter relates to an assignment of a client-purchaser or lessee and the latter purchases or leases property outside of the region to which the assignment relates.
- The client also owes a broker fee if the contract is made after the end of the assignment, but is the result of actions contrary to Article II.7 or the making of the contract is connected with the services which the NVM member provided to the client during the term of the assignment. Subject to evidence to the contrary, such connection is deemed to exist if the contract is made within three months after the end of the assignment. If the assignment terminates as a result of revocation by the client and the client gives a period of notice when revoking the assignment, the abovementioned period of three months is as much shorter as the time period between the date when the NVM member receives the written notice of termination and the date on which the assignment terminates. The foregoing does not apply if at the time of termination of the assignment a similar assignment has been granted to a professional real estate expert and such assignment is still ongoing at the time the contract is made.
- f a contract which has been made is not performed due to default of one of the parties or is not performed for some other reason, such shall not affect the NVM member’s right to the broker fee. With regard to contracts whereby the final making or obligation to perform is dependent, by virtue of a clause in the contract, on a suspensive or dissolving condition, the right to the broker fee shall also be dependent thereon, unless one of the parties or both enforces or enforce the condition in question in a manner contrary to its purpose. If a contract which has been made is not performed due to the use of the statutory cooling off period the right to the broker fee shall lapse.
- The amount of the broker fee is dependent on the type and content of the contract made, even if it deviates from the assignment and regardless of whether the contract was made during the term of the assignment or after termination thereof. The amount is determined by what the NVM member and the client have agreed. If a broker fee obligation arises in accordance with the provisions of Article II.16 after the end of the assignment, the NVM member has hardly carried out any work and the client has had no or little benefit therefrom, the broker fee shall be fixed at a reasonable amount.
- Making a contract shall also mean cooperation by the client in an action as a result of which the real estate is sold, let or allocated to the client and/or a third party in whole or in part and performance of the assignment is not continued in connection therewith.
- No broker fee is owed on the costs connected with making and performing a contract, such as notary costs and transfer tax. The amount of the broker fee and the fact that it is owed is not affected by what the parties may have agreed among themselves in the contract.
- If due to the actions of his client the NVM member cannot determine on which amount he must charge a broker fee, he is entitled to fix this amount in accordance with his own valuation and the client shall owe the broker fee calculated on such amount.
- Subject to the provisions of Article II.17, the broker fee is owed and payable at the time the contract is made.
- Unless otherwise agreed, the client shall reimburse the costs which the NVM member incurs on behalf of the client. With regard to making these costs and the scope thereof, the NVM member must have prior consultation with his client. The foregoing also applies if the assignment is suspended or terminated by revocation, return or otherwise.
- Without prejudice to the provisions of Article II.23, the client who revokes or suspends an assignment for services shall owe the NVM member compensation. If no agreements are made regarding the amount of such compensation, it shall be fixed at a reasonable amount.
- If there is cause for such, the client and NVM member can declare the provisions of Article II.24 to apply mutatis mutandis in the event the assignment is terminated in some manner other than revocation.
Purchase and sales
- If the amount of the broker fee is made dependent on the purchase price, purchase price means:
a) The amount that the buyer and seller agree as such. If turnover tax is owed on the purchase price or is included in the purchase price, then purchase price shall be understood to include the amount of the turnover tax unless the buyer is entitled to deduct the turnover tax;
b) If for a contract of purchase and sale the consideration is an annuity: The value which is attributed to the real estate to calculate the transfer tax owing;
c) In the event of real property under construction or still to be built: The agreed amount of the purchase and contractor’s price together or the expected construction price as set out in the contract; the foregoing includes turnover tax, unless the buyer is entitled to deduce the turnover tax;
d) In the event of purchase and sale of a right of emphyteusis or a right of superficies (opstal) on emphyteusis land: The amount that the buyer and seller agree as such, increased by an amount equal to ten times the periodic fee on an annual basis;
e) In the event of purchase and sale of apartment rights: The purchase price of the apartment right;
f) In the event of purchase and sale of membership rights in a joint venture for the exploitation of real estate or of shares in jointly owned property: The purchase price of the relevant membership right or share, without deduction of the share in any mortgage loan;
g) In the event of purchase and sale of shares in a public or private limited company: The fraction in the sale value of the real estate of the company which has been traded, as evidenced by the relevant number of shares;
h) In the event of purchase by exchange: The joint value of the related real property;
- The following are deemed the same as purchase and sale: contracts
a) of purchase by exchange;
b) of hire-purchase;
c) of purchase and sale in instalments;
d) of purchase and sale which do not or do not by definition encompass an obligation to transfer (legal) title (transfer of beneficial title);
e) granting a right of emphyteusis or superficies.
- If, in addition to real property, there is also purchase and sale of personal property (e.g. in the form of furniture, fixtures and fittings and inventory) or property rights (e.g. goodwill), or in addition property rights such as compensation, registrations, contributions inschrijvingen, bijdragen en dergelijke aanspraken op derden worden overgedragen dan wel and similar claims are transferred to third parties or such rights are agreed between the parties, purchase price shall also mean the purchase price of such personal property and property rights
Rent and Letting
- If the amount of the broker fee is dependent on the rent, rent means:
a) The consideration which the lessor and the lessee agree as compensation for the enjoyment of
b) If pursuant to the contract another amount is owed in rent in any following year than was owed in the first lease year, such amount is fixed at the time the contract is made and it apparently has another purpose than for the rent to stay in line with the value development of the Euro: the total of those amounts, divided by the number of years to which they relate;
c) If the rent is not expressed in money: The amount that the NVM member deems correct on the basis of his own valuations.
- With regard to calculating the broker fee, parts of rental years are deemed a whole rental year. Contracts for an indefinite period of time and contracts for less than five years which provide for extension by option or otherwise, are deemed, for the calculation of the broker fee, as contracts made for a period of five years or as much less as corresponds with a final date set out in the contract.
Optional years or years of tacit extension set out in contracts for a term of five years or longer, shall not affect the amount of the broker fee.
- The following are deemed the same as leases:
a) emphyteusis contracts;
b) lease by exchange contracts;
c) contracts for giving property into use;
d) contracts relating to a right in rem of use or residence;
e) other comparable contracts.
- If at the time the lease is made an option to purchase, a right of first refusal to purchase or a duty to purchase is agreed for a sum for which the size or the manner of calculation of which is laid down in the contract or which must be determined with the help of the NVM member and the purchase must be effected during the agreed or extended term of the original or renewed lease, a broker fee shall also be owed in respect of the purchase and sale in accordance with the agreed prices of purchase and sale. If no agreements are made regarding the prices for purchase and sale, the broker fee is to be fixed at a reasonable price.
- If personal property (such as furniture, fixtures and fittings, inventory) or property rights (e.g. goodwill) are leased as well, rent also includes the rent agreed for these goods.
If the personal property is purchase and sold along with the real estate or if property rights such as compensation, registrations, contributions and similar agreements are transferred to third parties or if the parties agree such rights, a broker fee shall be owed therefore in accordance with the agreed prices of purchase and sale. If no agreements are made regarding the rates at the time of purchase and sale, the broker fee shall be fixed at a reasonable price.
The NVM has not adopted any specific conditions for this form of services.
The NVM has not adopted any specific conditions for this form of services.
- In this chapter a valuation assignment means an assignment to make an appraisal and publish a basic report regarding the appraisal. An appraisal assignment does not entail an assignment to carry out an architectural inspection.
- The report shall encompass the name of the client, a brief, succinct description of the item appraised, the relevant land registry data, the opinion on the value and the type thereof, a specification of special circumstances which were taken into account with regard to the appraisal, the purpose of the appraisal and the date on which it was carried out.
- The report shall be issued to the client. The NVM member only accepts responsibility for the contents of the report with regard to the client. The client is free to make the report or information contained therein, unless such contains information clearly only intended for the client, available to third parties, provided he has paid the fee owing to the NVM member and he has made it clear to such third party that the NVM member does not accept any responsibility in respect of third parties with regard to the contents of the report.
The NVM member shall not disclose the report to third parties other than in consultation with his client.
- If an assignment has been granted to more than one NVM member jointly, such NVM members shall jointly publish the report. Their joint findings shall be published in this report. If the NVM members do not succeed in coming to joint conclusions, they shall consult with the client as to publishing a report setting out their various conclusions
- If the fee is made dependent on the appraisal value, appraisal value shall mean: a) In the event of appraisal of the value of a share in real estate: The appraised value of the entire real estate;
b) In the event of appraisal of the value of an apartment right or a membership right in a joint venture: The appraised value of such apartment right of such membership right.
c) In the event of appraisal of the value of superficies on emphyteusis land or the right of emphyteusis (whether or not with the rights of the lessee under emphyteusis to the superficies): The appraised amount, increased by the amount that is equal to ten times the relevant ground rent on an annual basis.
d) If the assignment relates to more than one type of asset, or if it is necessary to assess other assets in order to effect the requested appraisal and such additional assessments are set out in the report: The assessment for which the agreed fee calculation provides the highest result;
e) In the event of an appraisal in connection with a monetary loan secured by mortgage: The private sale value (also referred to as the market value), unless such is lower than the foreclosure value.
- The fee shall be charged per plot. However, if the plots form one complex, or if due to their situation they can be deemed to be equivalent thereto, they shall be deemed one plot for the calculation of the fee.
- In the event of appraisal in relation to an assignment given to one or more NVM members, each NVM member shall charge a fee.
- In the event of revocation of an assignment before it has been carried out, the client shall owe the client shall owe the NVM member a fee for the work already carried out. If no agreements have been made regarding the amount of this fee, it shall be fixed at a reasonable amount.
- Out-of-pocket expenses shall be charged. Reasonable charges can also be made in respect of travel and accommodation costs incurred.
The NVM has not adopted any specific conditions for this form of service.
V. Real estate management
- In this chapter, a real estate management assignment means an assignment to provide services on behalf of the client relating to one or more real properties belonging to or under the control of the client, which services shall benefit the maintaining and operation of the properties and shall contribute to realising an optimal return on the finances invested. The services to be provided can be of a commercial, technical or administrative nature. The following services can fall within the service package of a real estate manager:
- rent collection;
- taking care of additional supplies and services (administrative processing, settlement with lessees, monitoring of the quality of the supplies and services);
- payment of costs and levies;
- work relating to periodic rent price changes;
- taking care of maintenance (handling, evaluating and rectifying complaints, periodic inspection, longer-term planning, taking care of monitoring and payment of bills);
- ensuring that vacant properties or parts thereof are re-let and other activities relating to changes in the rental status;
- giving advice
- The real estate manager shall ensure that a real estate management assignment is laid down in writing.
- Revocation of a real estate management assignment must be in writing. Revocation is subject to a minimum notice period of three calendar months. Revocation of a real estate management assignment must be in writing. Revocation is subject to a minimum notice period of three calendar months.
Administration of Association of Owners
The NVM has not adopted any specific conditions for this form of services.
VI. Differences of opinion
- A difference of option between a member of the NVM and a third party – hereafter called the client – regarding a claim of the NVM member by the client, in connection with these Conditions, can be placed before the Conditions & Rates Advisory Committee by means of a written request for a decision. The committee consists of an uneven number of at least three persons and shall be assisted by a secretary. Appointment and dismissal is effected by the general management.
- The committee shall act and make decisions in a just and equitable manner. When handling a difference of opinion it shall act in a composition of three members assisted by a secretary, whereby the majority of the committee is formed by non-members of the NVM. If in the opinion of the committee special circumstances give rise to such, it can act in another composition. The committee shall make its decision in the form of a binding advisory opinion.
- A request to the committee shall be submitted to the general management or directly to the committee, preferably in six copies. The general management shall pass on requests received to the committee. A request shall set out: the difference of opinion, the facts, the own standpoint and the reasons therefore.
- A request can be submitted by the NVM member and the client jointly or by the client individually. When the client submits the request individually, the client shall owe a fee of &euro 34,- for the handling of the request. The committee shall determine the time and the manner in which this amount is to be paid.
- Unless the NVM member and the client submit the request jointly, the client or, if necessary, the committee, shall send a copy thereof to the NVM members.
- By submitting the request the client undertakes to cooperate in the handling of the difference of opinion by the committee and to comply with the decision of the committee. The same applies if the matter concerns a request submitted jointly with the client.
- As of the time that the NVM member has received a copy of the request of the client to the committee or as of the time a joint request has been submitted, the NVM member is no longer free to bring any other legal action against the client in respect of his claim and he is obligated to cooperate in the handling of the claim by the committee and to comply with the decision of the committee.
- Until the time referred to in Article VI.7, the NVM member can bring civil proceedings against the client. If the NVM institutes such proceedings without informing the client in advance by registered mail
- as to his intention,
- as to a time period within which the client can still satisfy the claim or can submit the matter to the committee while simultaneously sending the NVM member or his representative as set out in the letter a copy of the request,
- as to the contents of this chapter, the client shall still have the right to effect handling of the matter by the committee by submitting a request to the committee within 14 days after legal proceedings have been instituted against him, while simultaneously sending a copy of this request to the NVM member.
- The committee can decide that a request is not eligible for further consideration,
- if and as long as the request does not, in the committee’s opinion, meet the provisions Article VI.3;
- if it is of the opinion that the request falls outside of the committee’s competence;
- if the client refuses to sign a statement setting out that he is instructing the committee to decide the difference of opinion by way of binding advisory opinion and that in consequence thereof he is agreeing to be bound by the contents of this chapter of the Conditions;
- if and as long as the client has not paid the amount referred to in Article VI.4;
- in all other cases which are eligible for such in the opinion of the committee.
- The committee can give the parties the opportunity to exchange written documents and can decide that the parties shall be heard by the committee or one of the members of the committee at a time and place determined by the committee.
- The committee has the right to hear witnesses and experts. If so requested, members of the NVM are obligated to appear in person and to instruct their staff to appear.
- If the claim for payment does not derive from a NVM member personally, but from an office to which one or more NVM members are connected, then it is at the client’s election which member of the NVM connected with that office shall be the opposing party with regard to the handling of the difference of opinion by the committee. If the client does not make such election, the committee shall do so.
- The committee’s decision shall be laid down in writing, with reasons. It shall be signed by the chairman and the secretary of the committee and a copy thereof shall be sent to the NVM member, the client, the general management and the management of the department to which the NVM member belongs. The general management is authorised to publish decisions, leaving out or amending personal and local details.
- With regard to a client who does not make use of the opportunity to submit a request to the Conditions & Rates Advisory Committee regarding a claim for payment and who has been held to be in the wrong by the ordinary court, the NVM member in question can claim compensation of the extrajudicial costs he has incurred to collect his claim.
- Interest is owed on the amount relating to the claim for payment. The interest shall be calculated over the period between the time when the amount has been paid without being owed or, following notice by the NVM member to the client, should have been paid and the time when the amount is repaid or is actually paid. The interest rate is equal to the statutory interest rate (Sec. 6:120 of the Civil Code).
- If thirty days after the date of sending of a notice of default the NVM member or the client continues to default on the performance of an obligation to pay or repay pursuant to the decision of the committee, the costs which the other party reasonably incurs to enforce performance are at the expense of the defaulting party.
- The general management is authorised to establish rules for the further implementation of the provisions set out in this chapter.
Transitional provisions in respect of amendments of the Conditions NVM 2000 Amendment of 19 May 2000
- The amendments hereby made shall be effective as of 1 July 2000. With regard to assignments and services ongoing on 30 June 2000, the text of the Conditions NVM 2000 in effect at that time shall remain effective, on the understanding that the members are authorised to apply the new text in respect of such assignments and services, if such would be more favourable for the client, or if the client expressly agrees thereto.
- If it deems such in the interests of the NVM, the general management is authorised to amend the text of the Conditions NVM 2000.
Amendment of 23 August 2001
The amendments hereby made shall be effective as of 1 January 2002. The transitional provisions of 19 May 2000 remain fully applicable.
Amendment of 7 August 2003
The amendments hereby made shall be effective as of 1 September 2003. The transitional provisions of 19 May 2000 and 23 August 2001 remain fully applicable.
Amendment of 9 December 2005
The amendments hereby made shall be effective as of 15 February 2006. The transitional provisions of 19 May 2000, 23 August 2001 and 7 August 2003 remain fully applicable.
Thus adopted and designated as the regulations binding the members in the meeting of members of the NVM of 19 May 2000, amended (art. VI.4) by the decision of the general management of 23 August 2001 effective as of 1 January 2002, thereupon amended (art. II.9 and II.17). by the decision of the general management of 7 August 2003, effective as of 1 September 2003, thereupon amended (title, preamble and art. I.1) by the decision of the general management of 9 December 2005, effective as of 15 February 2006.