Kabellərin və boru kəmərlərinin təhvil verilməsi: mülkiyyət, sənəd, açıqlama və vergi

A cable or pipeline network in the Netherlands cannot be transferred with a signed purchase agreement alone. Because a network in another party’s land is immovable property, ownership passes only by a notarial deed registered in the public registers of the Land Registry (Kadaster) (Article 3:89 of the Dutch Civil Code, BW). The main exception to the rule that the landowner owns what is in the ground is Article 5:20(2) BW: the network belongs to the authorised constructor, not to the owner of the land.

This page explains who owns a network, how a transfer and a partial transfer work, what the notary does, what the seller must disclose, and which transfer tax and VAT questions come up.

Who owns a network of cables or pipelines?

Under Article 5:20(2) BW, a network of one or more cables or pipelines for the transport of solid, liquid or gaseous substances, energy or information, laid in, on or above another party’s land, belongs to the authorised constructor (bevoegde aanlegger) or its legal successor. The rule entered into force on 1 February 2007, after Supreme Court judgments in 2003 had held that cable networks are immovable property and left open who owned them.

Laying a network does not make you the owner by itself: you must have been entitled to lay it. That entitlement can follow from a right of superficies (recht van opstal), a statutory duty for the landowner to tolerate the network (gedoogplicht), a permit or written consent of the landowner. Contracts with contractors, invoices and construction records help to prove that you built it.

Qeydiyyat tələb olunur?

Not for ownership itself: the authorised constructor owns the network even if it is not registered. But the construction of a network can be entered in the public registers (Article 3:17(1)(k) BW), and in practice that registration is the starting point for any transfer, mortgage or split.

Registration also protects you. Under Article 3:24 BW, a party acquiring a right in registered property is in principle protected against facts that could have been registered but were not, unless it knew them. An owner who has not registered its network therefore runs the risk that a third party acquiring rights in the land can ignore its position.

How can an older network be registered?

Under Article 155a of the Transitional Act for the new Civil Code (Overgangswet nieuw Burgerlijk Wetboek), whoever acted as owner of a network on 1 February 2007 may register its construction and transfer and encumber the network as owner. The registration is published in the Government Gazette (Staatscourant) and a national newspaper.

If no third party registers a claim within one year of the last publication, its right to claim the network lapses; a claim for damages, if any, remains. During the first three months after publication the network cannot be transferred or encumbered. For older networks this procedure is often the only practical way to establish a clean title.

How does a transfer work?

Dutch law requires three things for a transfer of ownership (Article 3:84 BW): a valid title such as a sale, delivery, and power of disposition on the part of the transferor. For a network, delivery means a notarial deed followed by registration in the public registers (Article 3:89 BW).

The purchase agreement is only the title. Until the deed is executed and registered, the buyer has a claim against the seller, not ownership. The deed must describe the transferred network precisely, with reference to the registered network drawings, so that there is no doubt about what passes.

What if only part of a network is transferred?

Then the network must be formally split, and the transferred part becomes a separate registered network. The detailed requirements follow from the Land Registry’s rules; in practice the split involves:

• new network drawings for the remaining part and the separated part;
• a new network designation for the separated part;
• deposit of the drawings with the Land Registry;
• a notarial deed of delivery for the transferred part, with both the original owner and the buyer involved.

Ask the notary and the Land Registry in advance which drawings and data they need, because an incomplete deposit delays registration.

What about rights of superficies and easements?

Under Article 3:83 BW, property rights, including rights of superficies and easements (erfdienstbaarheden), are in principle transferable. The deed of establishment may, however, require the landowner’s consent for a transfer or split of an independent right of superficies (Article 5:91 in conjunction with Article 5:104(2) BW).

If the landowner refuses consent without reasonable grounds, the subdistrict court (kantonrechter) can grant replacement authorisation at the request of the party that needs it (Article 5:91(4) BW). A right of superficies that depends on a principal right, such as a long lease, follows that principal right and cannot be transferred separately. Existing rights may still regulate access, maintenance, relocation or compensation, so the deed must deal with them expressly.

Mülki hüquq notariusu nə edir?

The mülki hüquq notariusu (notaris) drafts the deed of delivery, checks the registers, the registration of the network and the transferor’s power of disposition, involves the parties whose cooperation is needed and registers the deed with the Land Registry.

Under Article 21(2) of the Notaries Act (Wet op het notarisambt), the notary must refuse services if, in his reasonable opinion, the act would conflict with the law or public order, or if his cooperation is requested for acts with a clearly unlawful purpose. The notary checks formal requirements and registers; contractual restrictions, technical defects and commercial risks remain your own responsibility.

Satıcı alıcıya nə deməlidir?

The seller must deliver the network free of special encumbrances and restrictions, unless the buyer expressly accepted them (Article 7:15 BW), and the network must conform to the contract (Article 7:17 BW). A seller who knew of a serious defect and kept quiet generally cannot rely on the buyer’s failure to investigate.

Network transfers are usually concluded between professional parties, and courts then expect the buyer to carry out its own due diligence. A buyer should therefore not rely on the duty of disclosure alone, and a seller should not assume that silence is safe.

What should the seller disclose as a minimum?

• the precise location, scope and technical condition of the network or part sold;
• running contracts, such as maintenance, capacity or supply obligations;
• known defects, malfunctions and restrictions on use;
• third-party rights, such as superficies, easements and leases;
• public-law restrictions, such as permits and the environment plan (omgevingsplan);
• technical documentation, inspection reports and maintenance history.

What can the buyer do if information was wrong or incomplete?

The buyer can invoke non-conformity (Article 7:17 BW) and, depending on the facts, annul the agreement for mistake (dwaling, Article 6:228 BW), rescind it in whole or in part (Articles 6:265 and 6:270 BW), claim damages (Article 6:74 BW) or claim a contractual penalty if one was agreed. In some cases a claim in tort (Article 6:162 BW) is possible.

The buyer must notify the seller within a reasonable time after discovering, or after it should reasonably have discovered, the non-conformity (Article 7:23 BW). A buyer who waits too long loses its rights.

Kim nəyi sübut etməlidir?

Under Article 150 of the Dutch Code of Civil Procedure (Rv), the party invoking a legal consequence bears the burden of proving the facts on which it relies; in a non-conformity case, that is in principle the buyer. A seller who claims it did inform the buyer will, however, have to substantiate that with specifics.

Record all information in writing: correspondence, the data room index, due diligence reports and a signed acknowledgement of receipt. Oral statements are hard to prove years later.

Which taxes apply?

The acquisition of a network of cables or pipelines is exempt from transfer tax (overdrachtsbelasting) under Article 15(1)(y) of the Legal Transactions Taxes Act (Wet op belastingen van rechtsverkeer, WBR). Whether VAT is due depends on the nature of the network and of the transaction.

What does the network exemption cover?

The exemption covers a network in, on or above the ground, consisting of one or more cables or pipelines for the transport of substances, energy or information. Whether a particular installation is such a network, for example masts without the cables and antennas or the source pipes of a thermal energy storage system, has been the subject of case law; have it assessed for your transaction.

Rights of superficies that accompany a network deserve separate attention. Since 2007 a right of superficies is no longer needed for ownership of the network, and the tax authorities no longer automatically treat its acquisition as covered by the network exemption. Check the köçürmə vergisi position of each right that passes.

What if the price is zero, or shares are sold?

Transfer tax is levied on at least the fair market value (waarde in het economische verkeer). If the exemption does not apply, the general rate in 2026 is 10.4% (Article 14 WBR), also if the agreed price is €0. Substantiate the valuation, for example where the removal costs of an old network exceed its residual value.

Transfer tax can also be due on the acquisition of shares in a company whose assets consist mainly of real estate. Whether the network exemption then applies depends on what the company actually owns.

Is VAT due?

The supply of immovable property is in principle exempt from VAT, but the supply of newly built immovable property before or shortly after first use is taxed, and parties can opt for taxation under conditions. Whether the network is new and whether the deal is a transfer of a going concern affect the outcome. Have the VAT position assessed by a tax adviser before signing and include a VAT clause in the purchase agreement.

Satıcı olaraq nəyi yoxlamalısınız?

• Is the construction of the network registered (Article 3:17(1)(k) BW), and are you the registered owner?
• Do deeds of establishment of rights of superficies require landowner consent for a transfer or split?
• Have you disclosed all known defects, third-party rights and running contracts in writing?
• Are network drawings up to date, and are new drawings ready if part of the network is split off?
• Does the purchase agreement deal with VAT, valuation and the operational handover?

Alıcı olaraq nəyi yoxlamalısınız?

• Does the chain of title from the authorised constructor to the seller hold, with registered deeds at each step?
• Do the registers show mortgages, attachments or claims registered under Article 155a of the Transitional Act?
• Does the technical due diligence confirm location, condition and maintenance history?
• Are permits, maintenance contracts and capacity agreements transferable, and do you need consent?
• Are the battery limits, the physical boundaries of what you buy, defined precisely in the deed?
• Have you notified the seller promptly of any non-conformity (Article 7:23 BW)?

What can we do for you with the transfer of cables and pipelines?

We advise network operators, energy companies and buyers and sellers of infrastructure on the legal side of a transfer, in cooperation with the notary; see also our daşınmaz əmlak üzrə vəkil səhifə.

• We check the chain of title, the registers and the rights of superficies and easements involved.
• We draft and negotiate the purchase agreement, including disclosure, warranties, battery limits and the VAT clause.
• We coordinate the split of a network with the notary and the Land Registry.
• We request replacement authorisation from the subdistrict court if a landowner refuses consent without good reason.
• We assess non-conformity claims and send or answer a notice of default.

xülasə

• A network in another party’s land is immovable property owned by the authorised constructor (Article 5:20(2) BW), not by the landowner.
• Ownership passes only by notarial deed and registration (Article 3:89 BW); the purchase agreement is only the title.
• A partial transfer requires a formal split with new network drawings; rights of superficies and easements must be dealt with expressly.
• The seller must disclose defects and third-party rights; between professionals the buyer must also investigate.
• The acquisition of a network is exempt from transfer tax under Article 15(1)(y) WBR; rights of superficies, valuation and VAT need separate attention.

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