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Questioner

Good afternoon, We have made an offer on a house that is in foreclosure and we need permission from the bank to be able to purchase it for the amount we have offered. What should we pay attention to when signing a preliminary purchase contract? that attachment needs to come off. how can the seller assure us of this.? What happens if the attachment is not removed on the day of transfer?

Lawyer

The purchase agreement must state that the property is transferred unencumbered, i.e. without attachments, mortgage rights, etc. The transfer of the property (delivery) can then only take place if the attachment is lifted. By including this in the purchase agreement, the seller is obliged to deliver the property to you without attachments and must do everything in his power to achieve this. If the attachment cannot be lifted on the day of delivery, delivery cannot take place and you can put the seller in default and demand compliance with the purchase agreement on this point.

Questioner

Thank you for your response! if the attachment is not removed on the day of delivery, can it happen that the transfer does not go through at all, so not even at a later time (different date)? so that the entire purchase is off the table...? (and in that case we will be left without a house) Of course, you can't count on the fine that the sellers will then receive, because people have already seized....

Lawyer

Yes, this can happen if the seller fails to have the attachment lifted in time. In addition to demanding compliance, you can also proceed to dissolve the purchase agreement. In that case, the seller will owe the contractual penalty. The penalty owed can be recovered by invoking the bank guarantee that may already have been provided by the seller.

Questioner

Thanks again for your response! I am really a novice in this area and don't really understand it. we as buyers must provide a bank guarantee, right? this is to protect the seller in case we do not comply with our agreements. and not to protect us if the seller does not comply with the agreements.

Lawyer

Sorry, I mixed up the parties. What you state is correct. You should provide the bank guarantee.

Questioner

No problem :) So in the worst case, the transfer does not go through, the sellers cannot pay us the fine due and we are left without a home. this can happen right? how quickly can a lien be lifted from a house. is there still a possibility to have a suspensive condition put in the preliminary purchase contract with a term by which the lien must be lifted or is this not possible? and if so, how can the selling party demonstrate that the attachment has been lifted?

Lawyer

Yes, this can happen. Lifting an attachment on real estate can be done quickly and usually takes place at the same time as the delivery, because the purchase price received is usually used to pay the claim for which the attachment was made. If the purchase price is not sufficient for this, a problem arises. Dissolving conditions can always be included in the purchase agreement, including a term within which the attachment must be lifted, failing which the dissolution of the purchase can be invoked. The attachment is registered with the Land Registry. If it is crossed out, that registration is undone.

Lawyer

If the attachment concerns a recovery attachment, then the attaching party is concerned with the security of receiving an amount from the proceeds of the sale, then the delivery (transfer of ownership) can usually continue and the attachment will be placed on the purchase price paid by you after the transfer of ownership. However, if it concerns a delivery attachment, where the attaching party believes that he is entitled to delivery of the house to him, then it may be that the attachment will prevent the house from being delivered to you at all and then you will indeed only be entitled to compensation. When the property is delivered to you, the notary will check that the property is unencumbered, i.e. free of mortgages and attachments, and if this is not the case, the notary will not execute the deed of transfer at that time, so that you do not run the risk of receiving the property with mortgage rights and/or attachments resting on it.