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Estates

In the Netherlands, there are many estates, often with a historical character. Estates that have been in the family for years as well as new estates contribute to the natural scenery of our country.

Our specialists can advise on all legal aspects that may be of interest to estate owners. This includes the following aspects:

Estates Act 1928
The Estates Act 1928 (Natuurschoonwet 1928) aims to prevent the fragmentation of the property and deterioration of estates. To achieve this there are offering tax benefits to estate owners in exchange for the preservation of the estates.

These tax benefits apply only to estates that meet certain conditions and, in addition, are classified as such. Tax facilities have been created in the field of income tax, real estate transfer tax, donations tax, inheritance tax, corporate tax and real estate tax. These tax facilities are subject to conditions. We can advise you on these tax benefits, but also on the consequences of the breach of these conditions.

Transfer of estates
When buying or selling an estate, it is important to make proper arrangements to prevent unwanted (tax) consequences. Many estate owners go to long-term contracts with third parties, including governments. Legislation and grants may be subject to conditions, which have not yet been worked out at the time of the transfer. What rights and obligations are legally transferred to the buyer (and which aren’t)? What charges and restrictions are there? Which tax claims are on the estate and who is responsible for it?

It is important for both the seller and the buyer to make unambiguous agreements. We would be glad to be of assistance.

Spatial development
On estates there are often several spatial developments. These may be essential for the survival of the estate. New features are created to utilize the estate and/or to maintain it, which sometimes will require a deviation from the zoning plan which will require an environmental permit.

New estates often have anterior agreements with municipalities. Municipalities are often willing to facilitate estate owners, subject to certain quality criteria. Regulations that offer permit free building can offer opportunities.

Transition estates during life or at death
Along with you, we think about the future of your estate. In what way can your family property be protected? How to prevent fragmentation of your estate? How do you make the best use of tax facilities?

Tax facilities of the Estates Act 1928 can be used with the transfer of estates by donation or inheritance with regard to the taxation on donations or inheritances. These facilities are subject to conditions.

There are several possibilities to arrange your testament to provide optimal use of the tax benefits of the Estates Act 1928. We can also assist you with advising and drafting of deeds of donation or dividing the inheritance.

Estate companies and estate foundations
An estate company is often created to preserve the estate as a whole and as family property. Statutes of estate companies contain specific provisions. In addition, the so-called ‘transparance fiscale’ plays an important role.

Changes may occur within the circle of family shareholders of the estate company. However, the estate is and remains wholly owned by the estate company. The changes within the circle of family shareholders relate to situations that may happen to an individual owners such as death or bankruptcy. In these cases, a shareholder may be required to transfer his/her shares to the co-shareholders which stimulates conservation of the estate as family property.

But what if you have no (direct) heirs or your heirs have no interest in the conservation of the estate? You may consider bringing your estate into a foundation.

Financing
The preservation and redevelopment of cultural heritage and estates is costly. To preserve this cultural heritage it is therefore sometimes necessary that new "economic" carriers are found and new revenue models are developed. Funding is always a key issue. Crowdfunding is a form of financing that is growing rapidly and can be of interest to cultural heritage and estates. In addition, funding may also be available in the form of third parties that participate in the estate, such as foundations, funds or nature management organizations. In all these alternative forms of financing, it is important to consider whether restrictions are imposed by financial law, including the law on financial supervision. For example, a prospectus requirement may apply or an exemption has to be requested from the Financial Markets Authority.

Leasehold
Leasehold is an attractive legal form for owners of cultural heritage. The preservation of the character of the cultural heritage and natural scenery plays an important role.

The drafting leasehold conditions concerning estates is custom made. The continuity of the estate must be safeguarded. Individual factors and wishes also play a role. Particular attention should be paid to the financing of the leasehold and the taxation.

Sometimes it is chosen not to provide a real right on the property, but a personal right of use in the form of lease or loan. It is especially important to pay attention to mandatory legal provisions.

Lease
Open farmland on estates are often leased to farmers. We speak of lease when it comes to an agreement whereby the lessor undertakes to the farmer, an immovable property or a portion thereof to provide in use in the exercise of agriculture (agricultural land) and the lessee provides lessor with a compensation. In the case of lease, there is usually a mandatorily legal regime that must be taken into account when entering into a lease. However, there are other forms of lease possible to which these mandatory provisions do not apply. We can assist you in drafting leases as well as  possible litigation with the court of leases (Pachtkamer).

Expropriation
As estate owner, you can be faced with expropriation. Expropriation is considered to be very drastic and may have implications for the classification under the Estates Act 1928. If, in the past, there has been relied on certain tax facilities of the Estates Act 1928, an expropriation may lead to recovery of claims by the tax authorities.

Prior to the court proceedings for expropriation, the government should first try to reach an amicable agreement. In case of expropriation you are, under the Expropriation Act, entitled to full compensation of financial loss, loss of income and collateral damages. In case of an (imminent) expropriation procedure it is recommended to seek advice at an early stage in the procedure and with the legal bottlenecks during negotiations. We can assist you in the legal expropriation procedure, if an amicable agreement is not reached.

Heritage law and monuments
Estates often have monuments or characteristic buildings present. Since July 1, 2016, the rules surrounding heritage and monuments are included in the Heritage Act (Erfgoedwet). For example, in case of rebuilding of monuments, but also of restoration and renovation, there are specific rules. For proposed developments it is important to inquire closely at the opportunities and potential obstacles.

Grants
The preservation of cultural heritage is seen as a common interest to the public. To ensure that this heritage is maintained in good condition, regular maintenance may not be enough. Restoration may be needed. But these costs are often higher than the maintenance and the renovation of regular buildings. Therefore, for estates and the protection of cultural heritage there are (specific) grants and financial arrangements available. For example, with (the recovery of) historic country, restoration of monuments or the layout of new forest or nature.

Would you like to know more about any of the above subjects? Please contact one of our specialists.

Specialists Estates

mr. A.M. (Diana) Gunckel

Lawyer
Areas of expertise: advising on complex financings, securities and project financing, mergers and acquisitions, joint ventures, restructurings and private equity, Financial Supervision Act (Wft)

mr. M.L. (Madlyn) Hoek

Candidate civil-law notary
Areas of expertise: corporate law, law of legal entities, mergers and divisions, stock transfers, corporate takeovers, restructurings, incorporation of legal entities

mr. C. (Chantal) Kolk

Candidate civil-law notary
Areas of expertise: real estate law, securities, commercial real estate, German Desk Immobilienrecht, Estates Act 1928, ground lease, structures, agricultural law
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