Advice on Exclusive Right of Use of Garden

Questioner

My boyfriend and I are planning to buy a ground floor apartment which has an adjoining communal garden that is located between our intended apartment and the downstairs neighbours, a commercial space. The house was advertised with 'exclusive right of use' of the garden. Now it turns out that there is nothing of that on paper. The actual situation is that the current residents of the apartment and the neighbours of the business premises are the only users of the garden and are the only ones with a key to the garden gate. How do we cover ourselves as a buyer that this situation remains unchanged? What kind of document/agreement can we establish with the VvE so that we officially have the exclusive right to use the garden? And is permission required from all upstairs neighbors?

Lawyer

You can record this in the purchase contract and then ask the notary to also include these agreements in the deed of transfer. It is important that it is included in the deed of transfer, because that determines what you buy and what you are entitled to. Verbal agreements, promises from the estate agent or other people (such as previous residents) actually have little importance: make sure that your wishes and agreements are included in the deed of transfer at the notary. You can find more information about your apartment rights at the Vereniging Eigen Huis.

Questioner

Thank you very much for your answer. In the meantime, we have had a conversation with the VvE and the current resident. The VvE is not prepared to put the verbal agreements about the exclusive right of use of the communal garden in writing. Is it still possible to have these verbal agreements included in the purchase contract and deed of transfer at the notary, or is that not legally valid in this case? Thank you in advance!

Lawyer

Both in the purchase contract and at the notary, both parties must sign. Of course, they will not do this if the other party has 'secretly' 'cycled' certain things into it. The notary will not want to cooperate with that either. If agreements are not put on paper, you will be in a weaker position later, should you still want to use these agreements. So you can choose: accept and hope that it will all work out (nothing on paper, but in practice) or not accept and therefore not buy. The choice is yours.

Questioner

That is indeed what we feared. Thank you very much for the information!