Uittenbogaart Advocatuur acts for companies and individuals. Is your subject not listed below? Please contact us to see if Uittenbogaart Advocatuur may be of service to you.
General conditions are of great importance for both large and small companies. Good general conditions can make the difference between success and bankruptcy. An investment in good general terms and conditions always pays back because if only one procedure can be prevented or won, there is a return on investment.
Different for each company
It often happens that companies use a random set of terms and conditions of the internet. However, this is not advisable because different provisions are important in different branches. For example, a car garage will have little to do with the return of products from a web shop (unless the garage itself also has a web shop) and so a webshop will have few provisions about damage to vehicles. For example, the financial sector again needs provisions on the ownership of client files, suspension rights, set-off provisions and privacy regulations. Wholesalers have an interest in both purchasing and sales conditions.
Beware of consumers
If a company deals with consumers, different legal rules apply. For example, there are limits to the provisions that can be included in general terms and conditions. The provisions that exceed these legal limits are then null and void or voidable. In addition, consumers must be informed in an extra careful manner about the applicability of the general terms and conditions, otherwise the conditions are not valid.
Choice of law
If the parties have not used any, or bad, general terms and conditions, there is a risk that (for example) an Italian court is competent in the court case and that this court will (for example) have to apply German law. This is very unfortunate as the outcome of such a procedure can not be estimated. In addition, such a procedure is very costly in connection with travel costs, the need for interpreters and the translation of procedural documents and international "legal opinions" in which German lawyers have to explain to the Italian court how German law works. This is not advisable, so ensure good general conditions.
Uittenbogaart Advocatuur has a special collection service for companies with difficulties to collect receivables.
First of all, the claim is judged legally. For example, there will be looked at the possible agreements between parties and the correspondence and whether the claim is disputed by the other party and on what grounds.
If the claim is legally extended, the remedies and the interests of the other party will be processed. If the other party offers redress for the claim, the collection can be started. If the other party does not offer redress but has other interests (such as preventing bankruptcy), the collection can also be started.
A result-dependent rate can be agreed upon prior to the start of the collection process. This means that the fee of Uittenbogaart Advocatuur remains limited if the collection does not succeed. For example, there is no risk that people will pay a lot for nothing.
Shareholders and other lenders still provide loans too often with the aid of a loan agreement on the back of a beer mat. However, this involves unnecessary risks that can easily be avoided.
If a loan is not repaid and the debtor does not comply with payment agreements and if the debtor is ultimately no longer available, there will often have to be litigation to get the money back. However, this is not necessary. The loan agreement can also be agreed in such a way that the agreement can be sent directly to a bailiff and can immediately seize the bank accounts and assets of the debtor so that the loan can be repaid. This saves considerably in the legal expenses.
In addition, agreements can be made with the debtor about securities. There are various options for this so that it is almost certain that there are always goods or people where the borrowed money can be redressed.
If security has been stipulated, however, there is still the risk that a possible bankruptcy trustee (in the event of bankruptcy of the debtor) will destroy these securities. These securities must therefore be obtained by the lender at the right time and at the right time.
Contact us for a free discussion about safe financing.
Uittenbogaart Advocatuur assists both business and private tenants and landlords in rental disputes.
buy or sell negotiations
The purchase or sale of a house, shop or other real estate property is regulated by a purchase agreement and later by a notarial deed of delivery. For house purchase agreements, much use is made of standard models. However, special items relating to the sale and the object can also be arranged in this purchase agreement. Since there are almost always exceptional circumstances, it is important to make clear agreements about this.
Fault deception and unforeseen circumstances
Deficiencies may come to light after the sale or purchase; defects that were not known to the buyer at the conclusion of the purchase agreement. For example wear, leakage and/or damp spots. In the case of unclear purchase agreements, it is then the question who is liable for such visible and / or invisible defects. When buying a house, what matters is what the buyer can expect and must investigate and what the seller knows at that moment and must explain. The seller has a disclosure obligation and the buyer has a duty to investigate, the question is which prevails in which case. Agreements can be made about this.
Tenant options can be included in a tenancy agreement. This means that only the tenant can terminate the rental agreement at the end of a certain lease term. You can also opt for a rental period of indefinite time. It often happens that disputes arise about this. The tenant has a strong position with these options, but this is not absolute. The tenant must actually invoke an action in time, otherwise the option can not be invoked.
Tenants of a home enjoy rental protection. On this basis, they may, for example, continue to rent the house, despite the sale of the house by the owner (purchase does not break any rent). Co-tenants also have rental protection. Only in hospitals rooms the rent can be terminated by the landlord in the first 9 months without reason, or if a temporary lease contract is concluded, which meets specific conditions, or if the property has been let on the basis of the vacancy law.
In the case of business rental, there may also be rental protection. This is especially true in the case of rental of a business premises for small tradesmen such as a baker or clothing store, where the entrepreneur is dependent on a regular clientele. However, this does not apply if the rental agreement lasts two years or less.
A claim to dissolve the rental agreement and eviction will normally be granted if there is a structural rent arrears of at least three months or if there are other factors justifying the eviction such as a certain degree of nuisance. In other cases, evacuation will not be allocated quickly, certainly not if it concerns a living space.
The rent and rent increase of social rented housing are subject to a maximum. The maximum annual rent increase is around a few per cent. Rentals in the free sector do not have such maximums, there are fewer rules for the rent in that sector. The successful adjustment of the amount of the rent therefore depends on what has been agreed and on a number of objective circumstances.
Lease agreements are regularly concluded in real estate. Lease actually means the "rent of a company", instead of just providing the use of a business space. The lessor (landlord) can then impose additional obligations on the tenant (tenant) such as: imposing a mandatory marketing concept, imposing an internal regulation, imposing the obligation to register with a certain supplier (and to buy a certain minimum amount).
Note: since it is often a business space, there are legal lease rules that can not be deviated from. For example, rules regarding the (change) of the rent and the lease terms. This is the case, for example, when it concerns a café, but not when it concerns, for example, a cinema or theatre. For example, the lessee, if he leases for a period longer than two years, is entitled to a rental period of 2 x 5 years and can, at the end of each period of five years, request the sub district court to determine a new rent.
Sublease is the case when the tenant of a house rents out to someone else. Here the distinction between renting the whole house and renting a part of the house is important. The subtenant of an independent rental space (an entire house) has a stronger right, if the main rent is terminated, than the subtenant of a part of the house. It is also important that the landlord gives permission for subleasing. The legal position of a subtenant is therefore dependent on several circumstances.
In the event of substitution, the rights and obligations from a tenancy agreement transfer to the successive tenant of the business premises. A tenant who wants to get rid of his lease can introduce a new tenant who wants to take over the lease. Therefore, no new contract is drawn up with the new tenant at the placement, but the original lease is continued. Each tenant of a middle-class business space has this right. However, the landlord does not necessarily have to agree with this. It can therefore be useful to make agreements about this in advance in the rental agreement.
Apartment rights and Association of Owners
An apartment right divides a building into 'separate' dwellings. An apartment right actually gives the buyer two rights: the co-ownership of the building and the right to use the property.
These apartment rights arise by splitting the building into the splitting deed. This is done in a notarial deed that is registered in the public registers. In the splitting deed the boundaries of the various apartments and the common areas are clearly displayed.
All apartment owners are automatically members of the association of owners (VvE). The division regulations state how the VvE meets and with how many votes a decision of the VvE is approved. It also includes the expenses that are chargeable to the apartment owners on behalf of all the apartment owners. The VvE is obliged to maintain a reserve fund for future maintenance and repairs to the building.
The VvE is therefore obliged to build up a maintenance reserve. The best way to determine the correct level of this reserve is by means of a Multi-Annual Maintenance Plan. This specifies which building component is involved, when it is due for replacement or repair and what the costs are. In order to prevent disputes, it is important to make clear agreements regarding the management and maintenance of the building and to work within the permitted framework of the law, the division deed and any regulations.
The user of an immovable property may become the owner after a period of time and under strict conditions. This is called acquiring prescription. If the user holds the good in good faith, he is the owner after 10 years and otherwise after 20 years. Since the original owner can sometimes lose a very valuable asset in this way, many disputes can arise about this.
An easement is a right that is established on an immovable property, for example a piece of land. An example of this is the right of way: the right to use the yard of another. Eaten ability is a real right which means, for example, that it will continue to exist after the sale of the property. The new owner must therefore tolerate others using their property. An easement must be established by means of an agreement laid down in a notarial deed and entered in the public registers, but a right of easement can also be obtained by prescription. A right of easement can, however, also be lifted by the judge again.
Contact us for an informal conversation about real estate.
Labour law has undergone major changes. The first part of the new legislation came into force on 1 July 2014 and the second part on 1 July 2015. It is of the utmost importance for employers to be aware of the new legislation so that they are not faced with surprises.
From 1 July 2014, a non-competition clause may no longer be included in fixed-term contracts, unless an employer properly motivates that this is necessary in connection with a major interest. For an interim director who will carry out work for a company for four years, no non-competition clause may be included in the employment contract. If a non-competition clause is included in a fixed-term employment contract, this stipulation is voidable.
A non-competition clause may be included in employment contracts for an indefinite period. This should be well motivated otherwise the clause is still voidable. If the non-competition clause is properly justified, the interests are weighed and, for example, the clause may also be partially annulled, limiting its operation.
If there is a valid non-competition clause, so a non-competition clause in an employment contract for an indefinite period that is well-motivated, this also applies in bankruptcy. Finally, non-competition clauses can only be included in the employment contract and therefore not, for example, in a collective labour agreement.
Employers who include a non-compete clause in their fixed-term employment contracts and refer to them in a successive contract for an indefinite period of time, in which a non-compete clause is possible in principle, can not refer to the earlier contract, since the stipulation therein was not valid and therefore also can not work through the successive contract.
The new article 652 paragraph 4 stipulates that a probation period for a contract of a maximum of six months is null and void. For an employment contract of longer than six months (for example, six months plus one day), a probationary period based on this article is strictly speaking permitted. Article 652 paragraph 8 sub f states that a probationary period in the case of a subsequent employment contract with the same employer is null and void, unless that successive agreement clearly requires different skills or responsibilities of the employee than the previous agreement.
Article 669 stipulates that no reasonable grounds are required for dismissal during the trial period.
Such a dismissal may still be in conflict with good employment practices (Article 7:611).
Obligation of notification
From 1 July 2014, an employer must indicate one month before the end of the employment contract whether or not a fixed-term employment contract will be renewed, unless it concerns an employment contract that is shorter than six months or in the case of a temporary project. If an employer fails to comply with this "obligation to give notice", the employer will still owe one month's salary.
A pro rata fee applies to other terms. For example, if an employer indicates two weeks late that the fixed-term employment contract is extended or not, the wage must be paid for two weeks longer.
The obligation to notify also applies to an employer who intends to extend the contract. This must also be indicated by the employer. Even if an employer fails to indicate that the employment contract will be extended, the employee can claim a monthly wage, but that claim expires after two months. However, in practice this will not be called upon quickly.
The chain arrangement
The principle "3x3x3" applied on the basis of the old chain regulation. This meant that employers were allowed to offer their employees three fixed-term employment contracts for a maximum period of three years, after which the fourth employment contract had to be regarded as an employment contract for an indefinite period.
This chain could be broken by leaving the employees for three months, after which three employment contracts for a definite period could be entered into again.
From July 1, 2015 the principle "3x2x6" applies. This means that employers may offer their employees three fixed-term employment contracts for a maximum period of two years, whereby the chain can be broken by having the employee retire for six months. It is therefore more difficult for employers to temporarily employ employees.
Starting up after a bankruptcy will, based on the new regulation, cause problems more quickly, since then there will be a successive employership and, under the new regulation, there will soon be a chain of three employment contracts, after which the fourth will have to be regarded as an employment contract for an indefinite time.
With the CAO, the chain arrangement can no longer be deviated unrestrictedly to the detriment of the employee. In the case of a CAO, only the maximum term for fixed-term contracts of two years can be extended to four years and the number of fixed-term contracts of three can be increased to six. In short, a CAO can therefore extend the statutory regulation of 3x2x6 to 6x4x6.
The current employment contracts are respected. This means that a current third-party employment contract expires on a regular basis, even if this happens after 1 July 2015. In that case, there is therefore no contract of employment for an indefinite period, because the three employment contracts have lasted more than two years.
If the CAO determines that the chain scheme does not apply, then after 1 July 2015, fixed-term employment contracts can be concluded up to a maximum of one year, this means up to 1 July 2016. After this date, this is no longer possible.
If a settlement agreement is drawn up for the purpose of termination by mutual consent, it must be stated that the employee can return to the termination in writing within two weeks. If this is not explicitly included in the settlement agreement, that term will become longer. If the employee makes use of this option, he can not subsequently revoke for six months.
Employers could submit three agreements to this employee as a result of this regulation:
the initial settlement agreement;
After this, the employer gets rid of the employee for six months.
In the case of collective bargaining, there may be deviations from the reflection principle. This is only possible, however, if a dismissal commission has been established by the CAO. In addition, this committee must have legal capacity for at least two years. It is therefore not possible to set up this committee for a particular occasion. On the basis of this new regulation it is therefore possible for employers to include in the CAO that they are not subject to the principle of reflection, but to objective performance and that they set up a dismissal committee.
This new regulation may cause problems in the event of a transfer of undertaking, if different schemes apply to different employers and different conditions apply. If a reorganization takes place in the new company, it can be unclear to which employees which regulations apply. For example, it is possible that the reflection principle applies to a particular group for another group the performance is taken into account.
Appeal and cassation
Despite the announcement that the new right of dismissal would provide for one dismissal route, it still applies to two dismissal routes.
Firstly, the employer can request the UWV (Employee Insurence Agency) permission for termination.
In this procedure, the UWV can no longer hide behind the dismissal decision, since from then on only the Dutch Civil Code applies. If the Employee Insurance Agency grants its permission, the employee can claim the annulment of this decision from the subdistrict court. After this, an appeal can still be lodged with the court of appeal and possible appeal to the Supreme Court. If the Employee Insurance Agency rejects the employer's request, the employer may still initiate a termination procedure with the subdistrict court. The parties can lodge an appeal against this ruling with the court of appeal and possibly with an appeal in cassation before the Supreme Court.
The subdistrict court can only dissolve with due observance of a period equal to the notice period. There is no separate standard for the compensation, so the subdistrict court formula expires and the new transition payment is the starting point.
From 1 July 2015, the employer owes a transitional compensation to employees upon termination of the employment contract. The transition allowance does not apply to young people up to the age of 18 with a contract of twelve hours or less. Furthermore, it applies to all employees in the event of involuntary and non-culpable dismissal. The transition payment is 1/6 monthly salary per six months of employment for the first ten years of service, starting from a minimum of two years of employment or longer. From the tenth year of service a 1/4 monthly salary applies per six months, with a maximum of € 75,000 or one annual salary if this is higher. The transition payment is not due in a bankruptcy. The ratio behind this is that in that case the UWV would have to pay this on the basis of the wage guarantee scheme.
In view of the aforementioned changes, employers must take active measures as quickly as possible. For example, adjustments need to be made to the new employment contracts that are entered into. In doing so, account must be taken of the new regulations regarding the probation period and the non-competition clause.
In addition, employers must make an inventory of where their employees are within the chain scheme so that they are not surprised by the fact that their employee appears to have been in permanent employment under the new scheme.
Employers must also be aware of their obligation to notify. Employers must therefore provide information about the time at which the notifications for the various employees must take place in order to prevent wage claims.
The possibility to deviate from the reflection scheme offers important opportunities for employers. In order to be able to use these opportunities, however, a dismissal committee must be set up in time so that it meets the requirement of the two-year existence as quickly as possible.
As a director of a company you are in a relatively vulnerable position. Directors can be personally liable. This often involves relatively large amounts of money that allow a director to go bankrupt and, for example, have to sell his house. It is therefore of great importance to prevent this.
Below are various forms of personal liability of directors explained.
Internal liability towards the company
A director can be personally liable to the company he works for if he can be "seriously accused". This is also possible after the termination of employment and despite a discharge.
Liability in case of bankruptcy
A director can be held personally liable for the deficit in the bankruptcy if he has obviously performed his duties improperly and it is plausible that this was a major cause of the bankruptcy.
If the director does not comply with the obligation to report incapacity for payment, the company is presumed to have been improperly managed in the previous three years. The driver is then personally liable for payroll tax, sales tax, environmental taxes and/or excise duties.
Liability for incorrect registration
If a company is not properly registered in the trade register, a director is personally liable for all legal acts of the company.
Liability in case of unfunded shares
If the shares of the company are not paid up, the director is personally liable for all legal acts of the company. This entails a high risk for directors as, for example, directors will often not automatically check whether the company's shares have been fully paid up. After all, a director will often be employed by a company that already has a longer period of time (for example 30 years). Sometimes it is even impossible to find out if the shares were fully paid up at that time and then it is the question who has to prove it.
Liability for misleading annual accounts
If the annual accounts, interim figures or the annual report give a misleading presentation of the situation of the company, the director is personally liable to third parties such as creditors, employees or shareholders if these third parties suffer damage as a result of the misleading representation of the business.
Criminal liability for annual accounts
A director can be held criminally liable if an incorrect financial statement has been published.
Criminal liability for offenses
If the company has committed a criminal offense (such as an environmental offense), the person who has ordered this can also be prosecuted under criminal law. This is often the director.
Liability for legal acts of a company "in formation"
The director of a company that has not yet been fully established is personally liable for these legal acts until the company has ratified the legal acts after its incorporation. It is therefore very important that these legal acts are all endorsed by the company.
Liability on the basis of unlawful act
The director of a company can be held personally liable if he has committed an unlawful act as a director. In addition, for managing directors' liability, on top of that, a director must also be able to be made a "serious reproach". So this is a heavier measure. However, if someone personally exceeds a standard of due care and is (incidentally) also a director, this weighted standard does not apply and a director is therefore more liable.
The shift from the retail trade from physical stores to web shops has meant that the regulations for web shops have recently been tightened up to protect consumers. The Authority for Consumers and Markets (ACM) actively checks in the Netherlands whether web shops meet the legal requirements and can impose fines if the rules are not met (up to € 450,000 per violation). Consumers can also file a complaint about web shops that do not comply to the rules.
On 13 June 2014, the European Consumer Directive came into effect in the Netherlands. From that moment on, the directive was implemented in Dutch law by the entry into force of the Consumer Rights Act. This directive aligns the rules for distance purchasing across Europe. The rules include all agreements concluded between traders and consumers at a distance (via the internet and telephone) and sales 'outside sales spaces' (such as door-to-door selling, etc.).
The Authority for Consumers and Market
In the Netherlands, the Netherlands Authority for Consumers and Markets (ACM) supervises compliance with the new legislation. The ACM is given the power to impose fines if a trader does not comply with the statutory rules. These fines can rise to € 450,000 per violation.
Consumers can also start talking to traders about compliance with the new legislation. In the event of incorrect compliance, consumers also have the option to dissolve or annul the agreement and to claim compensation. For webshop owners it is therefore of the utmost importance that they comply with the new legislation.
Layout of the webshop
Under the new legislation, a webshop must comply with a number of specific conditions and be set up in a specific manner. As mentioned, it has far-reaching (financial) consequences for the shop owner if all conditions are not met.
Provision of information
The new Consumer Rights Act stipulates that consumers must be informed about a number of issues before the agreement is concluded. This means that this information must be provided in a clear and understandable manner during the ordering process. The mere reference to the general terms and conditions with the information rights will not be sufficient to meet the obligation to provide information.
Not only must the information be provided in a correct manner prior to the conclusion of the contract (or during the ordering process), but this information must once again be provided in the correct manner to the customer after the agreement has been concluded.
Terms and Conditions
If general conditions are used (and that is advisable), these must be properly explained and correctly handled. For web shops, special and additional rules apply here. If the general terms and conditions have not been properly declared applicable and not handled correctly, the consumer can destroy the general terms and conditions and he or she is not bound by it.
A multitude of types of agreements is important for legal transactions. Examples include: purchase agreements, employment contracts, loan agreements, VOF (general partnership) agreements, surety agreements, rental/hire purchase agreements, contract agreements, contract agreements, management agreements, settlement agreements, shareholders' agreements, takeover contracts, agency agreements, pledges, etc.
The conclusion of most agreements is free of form and can therefore be both written and oral. It is, however, worthwhile to recommend the conclusion of contracts in writing. Unfortunately, there are often discussions afterwards about the interpretation of the agreement and the intentions of the parties. The importance of a good contract is therefore to prevent these discussions as much as possible.
There is a breach of contract if a party fails to fulfil its obligation(s) from an agreement. The other party can then demand fulfilment and may be entitled to compensation for the disadvantage suffered by the breach. If performance is not possible (anymore), the other party can terminate the agreement and compensation can also be claimed. If a party fails to fulfil an agreement, you can sometimes include in the agreement itself what the consequences are. This saves discussion again.
Sometimes the parties conduct very far-reaching negotiations without the actual agreement being concluded. In some cases, the parties can derive some rights from these negotiations. Again, however, you can make different agreements about this and that is sometimes advisable.
A penalty clause in an agreement can be an extra incentive to fulfil. On the other hand, a type of fixed compensation can also be agreed upon. This means that in the event of a shortcoming the penalty is due and the other party does not have to prove how much his damage is. This can be useful because it can prevent lengthy discussions about the level of damage.
Contact us for advice on contracts and thus avoid costly and unnecessary disputes.
The intellectual property right is the collective term for intellectual creations such as brands, design, music and inventions. The intellectual property right protects your intellectual creations.
Copyright gives the author of a work of literature, science or art the exclusive right to publish it and to reproduce it. Third parties may not do this without the permission of the maker. The copyright lasts for 70 years after the creator's death. Sometimes, however, it is possible to protect a work longer by depositing it as a trademark. However, there is some debate about this in the literature.
A brand is a sign with which a company distinguishes its products or services from those of other companies. In contrast to copyright, a trademark must be registered in order to enjoy protection.
Not every name or sign can be registered as a trademark. Brands must be sufficiently distinctive and may not be misleading. A trade name can be registered as a brand.
Trademark law expires if it has not been used for more than five years, even if it is registered.
Trade name right
By trade name is meant the name under which a company is driven. An enterprise may not use a trade name that has already been passed on by another company and if the public might be confused between the two companies. It is important to know the area where the company is located what the nature of the company is. For example, a butcher with the name Jansen from Groningen and a butcher with the name Jansen from Eindhoven is no problem. Both companies are indeed called the same, but they operate in a different area so that there is no confusion among the public between the companies.
For the supply of hardware and software (licenses), contracts must be drafted with provisions on copyright, the extent of the user right and transferability, guarantees and liability. For the delivery of IT services, a service level agreement (SLA) can be drawn up that specifies where the service must at least comply. It is important here, among other things, whether it concerns horizontal or vertical software and whether it concerns standard programs or customized programs.
Contact us for assistance with closing IE or IT contracts or for help with dispute resolution.
In times of economically poor conditions it can happen that an employer wishes to dismiss staff. In many cases, a termination proposal is simply submitted and the employee is given the choice between accepting or litigating. Sometimes an employer also gives an (unjustified) dismissal on the spot and states that there is an urgent reason for this. In both cases, it is very important to seek professional advice because you might lose your entitlement to a benefit in the event of a wrong approach. In addition, of course, your other rights must also be guarded.
If your employer makes a termination proposal, the transition compensation is often proposed as a termination payment. Often, however, a substantially higher amount is negotiable.
It is very important that the correct notice period is used. This should be checked based on the law, your employment contract and any applicable collective labour agreement. If the wrong notice period is used, you run the risk that you will not receive a benefit for some time.
Some employment contracts contain a so-called non-competition clause and/or relationship clause. When terminating the employment contract, it must be declared incorrectly applicable, otherwise you will lose your job and you will also find it difficult to get started elsewhere.
Contact Uittenbogaart Advocatuur, have your legal position determined and limit the chance of unpleasant surprises and ensure that your risks are covered and that you know your position.
Do you have financial problems? Have you made various attempts to find a solution, but will the situations remain hopeless? This offers you the possibility to start with a clean slate by the Legal Persons Debt Scheme for Natural Persons (WSNP). You have to tighten the belt for three years, but it is the only chance to start again.
In good faith
To be eligible for the WSNP, the debts must have arisen in good faith. This means that you are not allowed to have debts because, for example, you have scammed someone or because you have taken out a loan while you actually knew (or could have known) that you would not be able to repay this loan or if you had bought too many items in (web shops) at credit. Only if the debts have arisen in good faith, you will be eligible for the statutory debt rescheduling scheme.
City or lawyer
You can join the WSNP with the help of the municipality or with the help of a lawyer. At the municipality it is free, but you have to take into account a period of 1 to 2 years before the route with the municipality has passed before you finally end up in the WSNP, and then you have at least three years before you have a clean slate. It is therefore very important to be admitted to the WSNP as soon as possible. You can join the WSNP within a considerably shorter period when involving Uittenbogaart Advocatuur, sometimes after two or three months.
Contact Uittenbogaart Advocatuur and work on your future perspective
Sometimes it happens that your new product turns out to be different than you might expect, for example because it does not work well or because it looks different. Often this will be solved by the seller, but sometimes you are told that you have no guarantee on the product. Sometimes this happens with cars. The seller will refuse to assist you and to return your money. However, this is not always correct.
If a seller indicates that you have no guarantee (sometimes this is noticed on the purchase invoice) there are still some legal rules the seller must adhere to. If the buyer is a private individual and the seller is a company, and the purchased product is different than the buyer might expect, the buyer still has a kind of guarantee. The seller must repair or exchange the product free of charge and if he refuses, the buyer may terminate the purchase agreement and reclaim his money (or claim if necessary).
Contact Uittenbogaart Advocatuur, and have a review of whether you can still claim recovery or replacement of your product or (if necessary) terminate the purchase agreement.
The construction or renovation of houses, buildings, garages, dormers etc. are often very expensive. It is therefore extra annoying that it regularly occurs that the work is not carried out to full satisfaction, or that problems arise during the construction, or afterwards. Sometimes this can even result in a house being unusable for sometime and the residents having to temporarily seek accommodation with relatives or in a hotel. The various points for attention for construction work are shown below.
The conclusion of an agreement is free of form. It can therefore be done orally or in writing. An assignment to carry out painting work or the construction of a garden path often takes place orally, but in the case of large structures it is advisable to conclude a written working contract in which the agreements are laid down exactly in a way that no discussion can take place later. After all, it often happens that a discussion arises between a contractor and a client about the used materials or dimensions, etc.
Some people hire their own director. For example this could be an architect who supervises the contractors during the execution of the work. However, people do not realize that they are taking greater responsibility with this. After all, the contractor can state that he carried out his duties under the supervision of the supervisor and that he should have complained if something was wrong. In that case, it may be more advantageous not to hire an own director, but to leave all responsibility to the contractor.
People often agree with the contractor on a certain construction time. However, it is also possible to agree a fine in case the construction time is exceeded. This prevents an unreasonable delay without the client being compensated for.
The earnings model of many contractors is based on "additional work". This means that during the work there will be asked if there are additional wishes. A contractor is obliged to inform the client about any additional costs that may be associated with this, but this can always lead to any discussion later. It is therefore of the utmost importance to prevent this sort of discussion. After all, there are examples where ultimately much more had to be paid than the agreed contract price, based on additional work.
From the moment of delivery, all risks from the work of the contractor are transferred to the client. This is the last possibility to make comments about the work.
You may have to deal with a contractor who goes bankrupt halfway through the work. In some cases the client has already lost part or all of the contract price and remains with a major loss and an unfinished project. There are various ways to limit or prevent this risk.
Contact Uittenbogaart Advocatuur, have your legal position determined and limit the chance of unpleasant surprises and ensure that your risks are covered.
Rent or not
Sometimes there is doubt whether there is a rental agreement. Concluding an agreement is free of form, so it can also be oral. A rental agreement is an agreement whereby a space, or part of it, is made available in exchange for a consideration (that does not have to be money). If there is a rental agreement, there are several legal provisions that need to be taken into account.
An important legal provision is that the tenant of residential property has a far-reaching rental protection. The rent can not therefore simply be terminated, even if it has been agreed in writing, and the tenant makes up his mind. Rent protection can only be limited in a number of cases: when there is a "by its nature" temporary rental agreement or if the house is rented with a permit from the municipality on the basis of the vacancy law or if it concerns a hospital home and then only the first nine months.
The prohibition on subletting (via Airbnb) and other obligations of the tenant
As a tenant you also have obligations. In particular, subletting is often excluded in the rental agreement. Nowadays many homes are rented out to tourists through the Airbnb website. However, tenants run the risk of losing their home if subletting is not permitted. In addition, a tenant must of course pay rent and continue to act as a "good tenant". A tenant may therefore not cause a disproportionate amount of (noise) disturbance.
Buy does not break rent
Sometimes the owner of a house wants to cancel the rent because he wants to sell the house without any tenants because the house yields more. However, this is not possible without permission from the tenant.
It often happens that the tenant wrongfully pays mediation costs to real estate agents. If this is the case, you can reclaim this money. You can check whether you are entitled to this.
A lessor is obliged to provide rental pleasure. The lessor must therefore ensure that the house is well maintained so for example that the roof does not leak. If the property has defects, the tenant can request of the lessor that the defects be repaired. If the lessor does not do this, the tenant can suspend the payment of the rent (in part) until the repair work is completed.
Please contact Uittenbogaart Advocatuur if you have questions about renting or letting or have your rental contract checked or a rental contract drawn up so that you know where you stand.
Various insurance policies
People today have various types of insurance such as health insurance, household contents insurance, life insurance, home insurance, third-party liability insurance, disability insurance, travel insurance, car insurance and so on. Often everything goes well as long as the premium is paid and nothing is claimed.
Problems with the claim
As soon as a claim is made for an insurance policy, an insurer will often be unavailable. When it comes to small claims, it pays smoothly because the insurer wants to underline its high "service level". However, if it is a substantial claim, a team of lawyers will be put on the case to see if there are any ways to prevent the insurer from paying the damage.
The policy conditions of your insurance policy contain the rules. These are almost always drawn up by the largest law firms in the Netherlands, and if you study them properly, you can often come to the conclusion that in fairly few cases the (complete) damage is compensated. However, there are always borderline cases and cases where there is uncertainty as to whether the damage is covered or not. This can turn out in favour of the insured.
Pay attention! Under Article 7:942 of the Dutch Civil Code, a shorter limitation period (three years) applies since 2006 than the standard five-year prescription period. This means that you must claim in a timely manner if you suspect that you have suffered damage. This is not always immediately known.
Insurers and banks use a list with people who have ever tried to outsmart an insurance company or a bank. For example, it may happen that your expensive SLR camera falls on holiday in the pool and that you have travel insurance. The claim is claimed five weeks after returning home. The insurer then rejects the claim (of course) and refers to one of the tiny rules in the policy conditions stating that the damage should have been claimed within one month after returning home. It is now too late. Six months later you will go on holiday again. Two days after coming home you try to claim the camera again, this time within a month. The insurer determines that the same camera with the same type number and the same (water) damage is claimed again and therefore rejects the claim. In addition, the insurer then declares the insurance contract and places you on a black list. All banks and insurance companies check this list so that no one accepts you for insurance or mortgage, etc. That is a big problem. There is, however, only a few things to do about it. So keep that in mind.
Please contact Uittenbogaart Advocatuur if you have questions about your insurance or rejected claim.
The law of disturbance covers various topics. A brief summary of a number of conceivable subjects and types of disputes is given below.
Association of owners (VVE)
Many homeowners have an apartment right in a larger building such as an apartment complex or a flat. In that case, these owners are always obliged to be members of an association of owners and must pay monthly service costs to the association for the maintenance of the common areas. Conflicts within a VVE (for example, about the level of service costs or about maintenance, if desired) are often extra annoying because of the large number of people involved and the associated number of opinions. A well-structured management is therefore of great importance.
Right of way and other easements
There is a right of way or other easements on behalf of the neighbours on many parcels. Sometimes it concerns an old right that has been recorded in a cadastral way, but sometimes it is a factual situation in which the owner of one plot regularly uses the plot of another. After a while, however, this habit can become an irreversible right and that is not always desirable.
In the law of disturbance, various forms of nuisance are conceivable, such as noise nuisance, nuisance from the rainwater of the neighbours, nuisance of overhanging branches etc. There are various possibilities for settling the dispute for every type of nuisance.
It happens regularly that the owner of one parcel places the parcel (accidentally) on the parcel of another and thus, as it were, "picks up" the soil of the other. Sometimes this happens in good faith, but sometimes also in bad faith. In both cases, this new situation may change over time into a legal situation.
It happens regularly that the owner of one parcel places the parcel (accidentally) on the parcel of another and thus, as it were, "picks up" the soil of the other. Sometimes this happens in good faith, but sometimes also in bad faith. In both cases, this new situation may change over time into a legal situation.
Buying or selling a home is often one of the biggest legal events in life. You therefore want nothing to go wrong. Buyers want to buy what they have in mind and sellers want to be able to fully focus on their new home after selling their old house. Unfortunately, one often comes across unpleasant surprises. It is therefore of great importance to minimize the risks when buying or selling a home.
Below are a number of risks that the purchase or sale of a home can bring with them.
Standard NVM Purchase contracts
The Dutch Association of Estate Agents (the NVM) always uses standard purchase agreements. A choice can often be made from various options in these purchase agreements. However, the choice for a particular option has far-reaching consequences. For an example, see the heading "pollution".
Herd on the house
It can happen that a home has been seized by a creditor of the seller. It is also possible that after the contract of sale, but before the delivery at the notary, the property is finally seized.
Action unauthorized seller
Sometimes a seller is not authorized to sell the property, because he or she, for example, needs permission from his or her partner. Then there is the risk that this partner has not given permission.
A purchase agreement is often concluded "subject to financing". However, it regularly occurs that the conditions in this regard are not clear and the seller claims a contractual penalty if the buyer does not receive the financing. This fine is often a percentage of the total purchase price and can therefore increase considerably.
It often happens that a home contains asbestos or an underground tank or that there is other (soil) pollution. In the standard NVM purchase agreement, the option can be chosen: "It is not known to the seller that asbestos was processed in the real estate." However, this does not offer the buyer any assurance that no asbestos has actually been incorporated in the house. After all, the vendor only declared "that he does not know." If there is still asbestos present (for example during a renovation), the buyer will have to prove that the vendor knew this.
It is possible that the soil at a house is contaminated and that the municipality has issued a decision or an order on the basis of which the soil must be remediated. The contaminated soil must then be excavated and replaced with clean soil. The costs for this are considerable.
It is possible that a house with a beautiful view is located in an area that is subject to drastic changes, such as the construction of a motorway, railway line or the development of a new residential area or industrial estate.
Some houses have been designated as a monument by the municipality or province. Then it is not possible to remodel the house (far-reaching) or to paint the house in any colour.
Tenants have far-reaching rent protection under the law. If a rented property is purchased, this must be taken into account. If the buyer buys the property in a rented state, as an investment property, it may also be the case that a tenant has already paid (for example) one year in advance to the old owner and, as a result, there is no entitlement to rent payments for the time being.
In a home all kinds of hidden defects can be present such as leaks, woodworm, concrete rot and so on. It is important that parties record what happens when something is discovered.
Reduce the chance of unpleasant surprises and let the purchase or sale of your home legally accompany Uittenbogaart Advocatuur with the home check.
Unfortunately, many investors have faced hefty losses on the stock market in recent years. In many cases, the victims had invested their money in shares. Many banks offer their services as an asset manager or investment advisor and had to inform their customers that the prices had dropped and a large part of the customer's assets had evaporated. However, sometimes there may be a right to compensation for this loss if an asset manager or investment advisor has violated his duty of warning or duty of care.
Asset management or investment advice
In the case of asset management, the manager in question will be liable more quickly than in the case of investment advice. In the case of advice, the investor always ultimately decides on the strategic course that he wishes to sail. An asset manager, often independently manages the assets of his customers and is therefore ultimately responsible.
If the invested capital concerns a pension provision, an asset manager is more quickly liable to his client than when it concerns venture capital of the relevant investor. Therefore the asset manager must take this distinction into account and must make safer choices if he knows that the invested capital concerns the pension of his customer and he must then opt for a defensive investment strategy. If he has not done so, he will be liable more quickly for any damage of the investor.
Sufficient spread of invested capital also plays an important role in assessing the extent of liability of an asset manager. If there was insufficient diversification, the investment strategy could be assessed as too risky. There is also no question of diversification if investments are made in various sub-funds that are strongly intertwined.
Complaint obligation and legal processing
Asset managers and investment advisors will almost always argue that the victim can no longer claim compensation because he complained too late. A duped investor should therefore complain in time about the shortcoming of his asset manager to claim compensation. However, the moment at which the limitation period starts to run is different on a case-by-case basis.
For a free assessment of your chance of compensation, please contact Uittenbogaart Advocatuur.
If spouses decide to divorce, a divorce petition must be submitted to the court. If the parties agree and have no children, no owner-occupied home, no claim to alimony, then the divorce can be pronounced quite simply, sometimes even without the parties having to go to court. However, often there are more issues that need to be properly arranged.
Community of goods
If one is married in community of property they are each entitled to half of the matrimonial property. All goods must then be evenly distributed between the parties, or the value thereof.
Even if they are married under prenuptial conditions, sometimes they still have to distribute goods. However, that depends on what is included in the prenuptial agreement. For example, it is a frequent occurrence that one has had prenuptial agreements drawn up, but that it must be distributed more than one had expected. Sometimes, for example, a so-called "periodic settlement clause" is included in the marriage conditions. If then no income has been settled during the marriage, this must be done afterwards.
Home and mortgage
If parties have their own house, it is often decided to sell the house or that one of the two will continue to live in the house. In such cases it will often be decided to divide the possible surplus value or any residual debt. Complications can also occur here. For example, if one of the two had invested more money at the purchase of the home than the other and now there is a (considerable) surplus value.
If there is a residual debt while one of the two continues to reside in the home, it is important that the departing party is no longer jointly and severally liable with respect to the mortgage loan.
Authority and dealings
If there are children, a parenting plan must be submitted with the request for divorce with agreements about the handling and (the costs of) the care of the children. Sometimes parents also opt for co-parenthood, each taking 50% of the costs and care. However, this must be practically feasible.
There are two types of maintenance: partner maintenance and child support. The maintenance calculation takes place on the basis of the calculation of the need on the one hand and on the basis of the carrying capacity on the other hand. Since this need and capacity of both parties changes frequently, this subject often gives rise to (new) disputes.
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