What is leading, the date of the verbal agreement or the date of the deed of transfer?

Questioner

Neighbours from Rotterdam have sold a holiday home in Drenthe (plot A) with an established easement on the piece of sandy path that belongs to plot A in accordance with the Land Consolidation Act from 1990. In front of plot A there is another separate plot of sandy path, plot B, which belonged to the same owner, but the owner did not sell it to the buyer of plot A. Deed of transfer is dated October 14, 2022, registered with the Land Registry on October 17. This deed states: verbally agreed September 1, 2022. After acquiring the land, the new owner immediately started removing forests and made the sandy path in front of his house more solid so that a crane would not sink there. Other neighbors, where the dirt path leads to, have received the piece of dirt path plot B from the owner (so not bought). Deed of transfer is dated November 11, 2022, so one month later than the deed of transfer of plot A. Before signing the deed of November 11, 2022, a power of attorney was issued by the owner of plot B to the stepdaughter of the neighbors to whom the sandy path leads, so that the owner from Rotterdam no longer had to drive all the way to Drenthe. In the same deed, the neighbors to whom this path leads had a very extensive easement with new conditions entered on plot A with new conditions than those in the Land Consolidation Deed of 1990, whereby the stepdaughter accepted the easement on behalf of the owner of plot B. In the deed of delivery dated 11-11-2022 it states: 'verbally agreed mid-August'. However, when the deed of delivery was signed, on November 11, 2022, the owner from Rotterdam was no longer the owner of plot A. The contract was signed at a notary friend of these neighbours. We also have plots on that sandy path that come after that, the extended easement also has consequences for us because we have right of way over plots A and B, but we have not been informed about the adjusted easement for plot B and the sandy path of plot A. Which deed is now leading? Because it seems that the neighbors to whom the dirt path leads have been very 'sneaky', waited for the deed of October 14, 2022 and quickly put the date of the verbal agreement in the deed of delivery 11-11-2022 as mid-August. There is no exact date in it (not August 10, 2022, no mid-August). After all, if the seller of plot A had agreed on a different easement in August, then that should have been discussed in the purchase agreement from the owner of plot A to the new owner and included in the deed of transfer of 14 October. That did not happen. We would like to know what the legal situation is.

Lawyer

In notarial law, the moment of registration in the Land Registry is in principle decisive for the transfer of a right, such as the right of ownership or an easement. The moment of registration in the Land Registry therefore determines, in principle, when someone becomes the owner of a property. In your case, it appears that there are two different deeds, each with a different easement, relating to two different but consecutive moments. As regards the easements, that of plot A is listed in the deed of 14 October 2022 and is therefore registered before that of plot B in the deed of 11 November 2022. Based on the dates mentioned, the deed of 14 October should therefore take precedence over the deed of 11 November. The right of easement recorded in that deed should in principle take precedence over the later right of easement. However, the situation is complicated by the fact that the deed of 11 November apparently states that agreements were made 'orally in mid-August'. Oral agreements can also constitute legally valid contracts, but it can be difficult to prove such agreements. Since easements are in principle established by means of a notarial deed and registration in the public registers (Article 5:78 of the Dutch Civil Code), an oral agreement on this matter may raise questions regarding its validity. In addition, in this case, an appeal can also be made to the third-party protection as provided for in Articles 3:88 and 3:89 of the Dutch Civil Code. This allows a later acquirer of a good to be protected against unregistered or incorrectly registered rights that were established earlier. It seems that your case requires a thorough investigation to map out the exact facts and circumstances. It would be good to seek legal assistance in this. An experienced real estate lawyer or notary lawyer can help you unravel this situation. ---------------- Stichting Rechtswinkel.nl is a national organization with students and volunteers. The above advice is based on limited information and may be incomplete or even incorrect for your situation. Always consult a lawyer or attorney for your further steps. Read disclaimer: https://rechtswinkel.nl/disclaimer I would like to invite you to rate the above answer so that we can learn from your response.

Questioner

We have made an appointment with an independent notary to ask which document is leading and what we can possibly do about it. Thanks for your quick answer!