These General Terms and Conditions for Consumers Residence365
(hereinafter: the ‘GTC Consumers’ have come into operation as of the 1st of July 2013.
Part 1. General
Article 1 Scope of operation
These GTC Consumers are applicable to all commissions, offers and/or agreements between Residence 365 B.V. and its Principals and serve also for the benefit of the partners of the company or its directors and the persons working for the company. All commissions are solely accepted and executed by Residence 365 B.V. That applies also if it is the explicit or tacit intention that a commission will be executed by one or more certain person or persons.
The applicability of article 7:404 Dutch Civil Code, 7:407 section 2 Dutch Civil Code and 7:409 Dutch Civil Code is explicitly excluded.
Article 2 Definitions and terms
In these GTC Consumers will be understood under:
- Consumer: Principal, natural person, that does not act in the exercise of a profession or enterprise;
- Estate agent: an estate agent working at or affiliated with Residence365 B.V. or the enterprise of an estate agent affiliated with Residence365 B.V.;
- Commission: the agreement of commission to the provision of services. Under provision of services will be understood: the mediation with regard to purchase, sale, lease or rent of immovable goods (Article 11 and following); the taxation of immovable goods (Article 18); real estate management (management) of immovable goods (Article 19) and the other services to be executed by the estate agent;
- Immovable goods: under immovable goods will also be understood limited rights on immovable goods such as long term lease and building rights;
- Fees: the price for the provision of services by the estate agent including the brokers’ fee stated under f;
- Brokers’ fee: the Fees that are due with regard to mediation with regard to purchase, sale, lease or rent of immovable goods;
- Industry organisation: not applicable;
- Dispute Committee: the ‘Geschillencommissie Makelaardij’ of the Dutch Foundation ‘Stichting Geschillencommissies voor consumentenzaken’;
- Home: an immovable good destined as a residence.
Article 3 General and personal offer
- The general offer of the estate agent to the Consumer encompasses a clear description of the provision of services that the concerned Consumer may expect. The general offer also includes the Fees for the provision of services and the other conditions under which the provision of services is executed.
- After taking knowledge of the general offer by the Consumer, the estate agent offers the Consumer the opportunity to enter into negotiation about that with him to come to a personal offer.
- The estate agent ensures that the final personal offer is recorded in writing or electronically in an order form, in which reference is made to the applicability of these GTC Consumers.
- The personal offer or the general offer is accompanied by a copy of these GTC Consumers.
- In case of the absence of a commission in writing signed by the Consumer or electronic commission originating from the Consumer, the estate agent has no right on payment of Fees or expenses, unless he can prove the existence of the commission in case of dispute after all.
Article 4 Conclusion of the commission
A commission applies solely as being accepted, if the commission by Residence 365 B.V. has been confirmed in writing to a Principal, or is recorded in a in written agreement of commission, in which also explicitly must be made known whether the commission is accepted by (the directors of) Residence365 B.V. No rights can be derived from email exchanges and the limitations of authorities of the persons as stated in the Trade Register will be observed strictly.
Article 5 Duration of the commission
Unless agreed differently between Parties, the commission is for an undefined period.
Article 6 End of the commission
- The commission ends by:
- fulfilment of the commission by the estate agent, unless there is an instance of a contract that by its nature has an ongoing character (Article 19);
- withdrawal of the commission by the Consumer;
- return of the commission by the estate agent;
dissolution by one of both Parties;
- Death of the Consumer.
- The estate agent has his commission fulfilled, as soon as the agreed performance has been delivered or - in case of mediation by the estate agent - the envisaged agreement between the concerned Parties as a consequence of services provided by him has been concluded. In case of purchase of a home by a Consumer there is only an instance of an agreement if the purchase is recorded in a purchase agreement signed by both Parties. The being fulfilled does not reduce his obligation deriving from that commission to guide the Consumer at the processing. In case of agreements of which the definitive conclusion or obligation to execution on the basis of a stipulation belonging to the agreement is dependent of a suspending or dissolving condition, then also the being fulfilled of the commission is dependent thereon.
- A commission can solely be withdrawn in writing and with statement of the reason by the Consumer. The estate agent has in that situation at all times a right to payment of the one-time contribution of 1,995 Euro and an amount in the order of 10% as withdrawal costs calculated over the brokers’ fee of 2% of the asking price, as well as a right to the already made costs as referred to in Article 17 and, if and insofar at the granting of the commission agreed, on a percentage of the wages.
- The estate agent can give back the commission on the basis of heavy weighing reasons. As heavy weighing reason will in each case be considered: the situation described in Article 12 section 1 or a serious disruption of the relation between the estate agent and the Consumer. The return by the estate agent must take place in writing or electronically.
- A commission can be dissolved when at the side of the counterparty there is an instance of a shortcoming in the compliance with the obligations. The declaration to dissolution most by preference take place in writing or electronically.
- As the date for termination of the commission is regarded the date on which the estate agent, respectively the Consumer, receives the notification regarding the withdrawal, return, dissolution or death or the later date mentioned in that notification.
Article 7 Turnover Tax, payable upon demand
- The agreed Fees and the additional costs are, unless explicitly agreed differently, exclusive of and will therefore be increased with the lawfully due Turnover Tax (VAT).
- Unless agreed differently all claims because of due Fees, brokers’ fee or costs are immediately payable upon demand as soon as the purchase or lease agreement has been concluded or the commission is executed, or this ends for other reasons. The one and the other notwithstanding the stipulations in Article 14 section 2.
Article 8 General obligations of the estate agent
- The estate agent executes the commission accepted by him to the best of his knowledge and abilities and taking into account the interests of the Consumer. Unless agreed differently the estate agent may let the activities necessary for the execution of the commission be executed by others, whereby the estate agent is also authorised to accept exoneration clauses of third parties on behalf of the Consumer.
- The estate agent keeps the Consumer frequently informed about the progress.
Article 9 General obligations of the Consumer
- The Consumer provides the estate agent, to the best of his knowledge and abilities with the information that the estate agent requires for the execution of the commission.
- It is not permitted for the Consumer to develop outside the estate agent, activities that can hinder the estate agent at the execution of his commission or across his activities.
Article 10 Payment
- The Consumer pays the estate agent for the provision of services in accordance with the agreements made.
- The estate agent sends the Consumer a properly specified invoice in which a reasonable payment term will be stated.
- If the Consumer does not pay within the term stated in the invoice, then he is in default by law and the estate agent is authorised to add the interest by law.
- The estate agent is, after expiry of the term of two weeks mentioned in section 3, authorised to proceed without further notification of default to collection of the amount due to him. The (out-of) court costs connected thereto in reasonableness are for the account of the Consumer, unless the courts or Dispute Committee decide differently.
- In case a commission is granted by more than one person, each of them is jointly and severally liable for the payment of all the due amounts on whichever basis.
Part 2. Mediation
Article 11 Commission to mediation, partial services
The core of a commission to mediation concerns giving advice about and the conduct of negotiations. The commission to mediation can be extended with, among others, the following services:
- Discussion of and advice regarding the possibilities to reach the envisaged agreement;
- Arranging for and guiding viewings;
- Assessment of the value of the concerned immovable good;
- Paying attention to legal, fiscal, construction related and other aspects being of importance;
- Guiding at the processing.
For the commission to mediation it applies that the estate agent during or directly prior to the commission, must have viewed the immovable good at least once.
Instead of a commission to mediation a commission can also separately be granted. Under partial services to be provided to the Consumer can furthermore, among others, be understood:
- composing of a purchase agreement without that there is an instance of mediation;
- composing of a lease agreement without that there is an instance of mediation;
- the inputting of data regarding an immovable good in electronic systems, including those via the Internet;
- the composing and having advertisements placed;
- the 'researching' of an immovable good;
- the execution of a search commission for an immovable good;
- the arranging for of advertisements or exposure in international media;
- the arranging for an application for a housing permit, so-called Nationale Hypotheek Garantie, (transfer of) subsidies, etc.
On partial services these GTC Consumer are applicable to the extent that the nature of those stipulations do not do it.
Article 12 Obligations of the estate agent
- The estate agent not permitted to accept more than one mediation commission with regard to one and the same immovable good. If he has earlier received a mediation commission concerning a certain immovable good, then he can only accept a new commission, after the first commission has been terminated demonstrably. If from two or more ongoing mediation commissions by the estate agent services must be provided with regard to the same immovable good, while the provision of the service to the one Principal is contrary to the interest of the other Principal, then the estate agent must give notification of this in writing or electronically to his Principals. The estate agent is in that case obliged, no later than at the moment that the stage of negotiations between both Principals is being reached, to enter into consultation with his Principals. This consultation must lead to one of the commissions being suspended or terminated. It is the estate agent that is therefore not permitted to provide services concerning one and the same immovable good, to more than one Principal when the provision of the service to the one Principal is in violation with the interest of the other Principal, notwithstanding the wishes of the concerned parties.
- The Consumer whose mediation commission is terminated on the basis of the stipulations in the previous section, is liable to pay to the estate agent no fee whatsoever, under whichever name, with the exception of possible advertisement or marketing costs in international media, as well as the costs as mentioned in Article 17 that the estate agent already has made under the commission of the Consumer.
- The estate agent is authorised to the conclusion of agreements on behalf of the Consumer, and to accept in that framework exoneration clauses of third parties on behalf of the Consumer.
- The estate agent will comply during the execution of the commission with the Dutch Laws Wet Bescherming Persoonsgevens (WBP) and the Wet ter voorkoming of witwassen en financieren of terrorisme (WWFT).
Article 13 Obligations of the Consumer
- It is the Consumer, except for agreements to the contrary, not permitted to conclude outside the estate agent agreements, to conduct negotiations, to make use of similar services of others and/or to develop activities that can hinder the estate agent at the fulfilment of his mediation commission or across his activities.
- The Consumer cooperates to the fulfilment by the estate agent of the obligations (for example the identification of the Principal) which this has in the framework of the WWFT.
Article 14 Brokers’ fee
- The Consumer is liable to pay the estate agent brokers’ fee if during the duration of the mediation commission an agreement with regard to an immovable good is concluded. This applies also if the agreement is not the result of services provided by the estate agent. Under the conclusion of an agreement is also understood the cooperation by Principal to an act as a consequence of which the immovable good is sold in whole or in part, leased or allocated to the Principal and/or a third party and in connection therewith the execution if the commission finds no further progress.
- Unless agreed differently brokers’ fee with regard to mediation in case of purchase or sale of an immovable good is only payable upon demand at the time of the legal delivery of the immovable good at the notary public without that the Consumer over the period between the liability of the brokers’ fee and the becoming payable upon demand thereof is liable to pay interest to the estate agent. When it is established that a concluded agreement does not lead to a legal delivery of an immovable good at the notary public and the estate agent has a right to brokers’ fee, then the brokers’ fee is from that moment payable upon demand.
- After termination of the mediation commission as referred to in Article 6 section 1 sub b to e the Consumer a brokers’ fee is due:
- in the order of 100%, if within 6 months after the termination of the mediation commission an agreement is concluded with a buyer or relation introduced by the estate agent;
- in the order of 100%, if the estate agent provides sufficient evidence that the conclusion of the agreement with regard to the immovable good is the result of provision of services of the estate agent to the Consumer during the duration of the commission;
- in the order of 10% of the regular brokers’ fee, if no agreement is concluded on the basis of the mediation.
- In case of agreements, of which the definitive conclusion or the obligation to execution, on the basis of a stipulation belonging to the agreement, is dependent of a suspending or dissolving condition, then also the right on brokers’ fee is dependent thereon, unless one of Parties or both the concerned do not apply the condition in accordance with its tenor.
- When a concluded purchase agreement is terminated by making use by the buyer of the legal reconsideration time (Article 7:2 Dutch Civil Code), then the right on the brokers’ fee with regard to this agreement becomes void.
- When an obligation to pay brokers’ fee emerges in accordance with the stipulations in section 3 of this Article, then the estate agent has a right to a part of the brokers’ fee to be determined in reasonableness. At the determination thereof will be taken into account with activities already executed by the estate agent, the benefit that the Consumer has thereof and the basis on which the agreement is terminated.
- When a concluded agreement does not come to execution, then the estate agent retains a right to a full brokers’ fee, unless the Consumer makes it likely that the non-execution is the result of imputable shortcoming (default) of the estate agent.
Article 15 Calculation brokers’ fee purchase and sale
- The brokers’ fee will be calculated on the basis of what Parties have agreed about it. Insofar Parties have agreed no basis for the calculation of the brokers’ fee, then the following sections of this Article shall apply.
- The brokers’ fee will be calculated over the purchase sum of the immovable good and amounts to, without deviating agreement in writing, 2% thereof, to be increased with the lawfully due VAT.
- Under the purchase sum will be understood the amount that the buyer is due to seller, exclusive of the costs and rights that fall on the transfer, such as transfer tax, notary costs and cadastral rights.
If over the purchase sum VAT is due, or this is included in the purchase sum, then the brokers’ fee will also be calculated over the amount inclusive of taxes mentioned unless the buyer is authorised to deduct the VAT.
- In case of immovable goods under construction or yet to be built, the brokers’ fee will be calculated over the purchase and contracting sum together, or over the expected building sum or foundation costs, evidenced from the agreement, including of the VAT, unless the buyer is authorised to deduct the VAT.
- In case of purchase and sale of a right of long term lease, or of a building right on long term lease ground the brokers’ fee will be calculated over the amount that the buyer and seller agree as such, increased with an amount equal to a tenfold of the periodic compensation on an annual basis.
- In case of purchase and sale of a right to an apartment the brokers’ fee will be calculated over the purchase sum of the right to an apartment.
- In case of purchase and sale of a right of membership of a cooperative association to the exploitation of immovable goods or of shares in undivided properties the brokers’ fee will be calculated over the purchase sum of the concerned right of membership or share, without deduction of the share in a possible mortgage loan.
- Equal to purchase and sale agreements will be regarded for the calculation of the brokers’ fees:
- Purchase by exchange;
- Financial lease;
- Purchase and sale in instalments;
- Purchase and sale that not without further provision includes the obligation to delivery (economic transfer of ownership);
- The vesting of the right of long term lease or building rights.
- If movable goods in a material sense and/or asset rights (for instance goodwill) are bought or sold, and/or if also compensation for damages, registrations/tenders, contributions and so forth are agreed by Parties towards each other, then the brokers’ fee will also be brought into account over the purchase sum of these goods and these rights.
Article 16 Calculation brokers’ fee lease and rent
- The brokers’ fee will be calculated on the basis of what Parties have agreed about it. Insofar Parties have not agreed a basis for the calculation of the brokers’ fee, the following sections of this Article shall apply.
- In case of lease and rental agreements with regard to immovable goods the brokers’ fee will be calculated over the rental sum, taking into account the other stipulations stated below.
- Under the rental sum will be understood the amount that the lessee and lessor agree as compensation for the mere enjoyment of the immovable goods for the first rental year.
- The brokers’ fee will be calculated over the rental sum + VAT, if this is applicable, unless the lessee is authorised to deduct the VAT.
- If on the basis of the agreement in any following year for lease another amount shall be due than in the first rental year and this amount at the conclusion of the agreement is already known, while this obviously does not have another purpose than to keep the lease in similar development with the development of the value of the euro, the total of those amounts will be considered for the calculation of the brokers’ fee, divided by the number of years to which they relate.
- A part of a rental year will be regarded as an entire rental year.
- Equal to lease and rental agreements will be regarded for the calculation of the brokers’ fees:
- Land lease agreements;
- Lease-exchange agreements;
- Agreements to giving into use;
- Agreements concerning an objective right of use and housing;
- Other similar agreements, such as financial or operational lease.
- If there are movable goods and/or asset rights (for instance goodwill) are also leased or rented, then under the rental sum will also be understood the rental/lease price agreed for these goods. If the goods are bought or sold, and/or if also compensations for damages, registrations/tenders, contributions and so forth are agreed by Parties towards each other, then the brokers’ fee will also be brought into account over the purchase sum of these goods and these rights.
Article 17 Costs
1. Unless agreed differently the Consumer in case of a mediation commission will pay the costs that the estate agent makes for the benefit of the Consumer. With regard to the making of these costs and the scope thereof, the estate agent must enter with the Consumer into consultation in advance and record agreements in that regard in writing or electronically. The one and the other applies also if the commission will be suspended or ends by withdrawal or otherwise.
2. The Consumer is, with regard to a withdrawal, never liable to pay damages. The estate agent has in that regard, however, a right to compensation of already made costs as set forth in the previous section and, if and insofar agreed at the granting of the commission, on a percentage of the wages.
Part 3. Valuation
Article 18 Valuation
- Valuation of an immovable good is the giving of a value assessment over it to the Consumer on the basis of nature, status and location and the state in which the immovable good is and the delivery of a simple report there over. Unless agreed differently, the Valuation takes place according to the current version of the valuation report financing residential property that has been established by the representative organisations in the industry. A Valuation must be executed by an estate agent in person.
- The valuation report must include: the name of the Consumer, the purpose of the Valuation, a short to-the-fact description of the valued, the cadastral data, an assessment of the value stating the sort thereof, special circumstances which were taken into account, the date on which the Valuation took place and the name and the data of the valuator. The valuation report is not a construction report.
- Unless agreed differently the report will be issued to the Consumer. The estate agent will make the report not available to third parties unless he has obtained permission of the Consumer.
- The estate agent accepts responsibility for the content of the report only towards the Consumer, therefore not towards third parties.
- Unless agreed differently the Consumer is upon commission for Valuation liable to pay the agreed Fees as soon as the report has been delivered.
- If the Consumer withdraws the commission to Valuation before it is executed, then the Consumer is liable to pay a compensation for the already executed activities. If over the height of this compensation no agreements have been made, then this has to be established in reasonableness.
- The expenses necessarily made by the estate agent in the framework of the valuation commission with regard to travel and board, duties and cadastral research shall be paid by the Consumer.
- In case of Valuation as a consequence of a commission granted to several estate agents, the rate shall be charged by each estate agent.
- In case of a commission to several estate agents jointly, these shall jointly issue a report. In this report their joint findings will be expressed. If the estate agents do not succeed into issuing joint conclusions, then they will enter into consultation with the Consumer regarding the issue of a report in which their divergent conclusions appear.
- The Fees will be calculated on the basis of what Parties have agreed about it. If the rate has been made dependent on the value of the valuation, then under the value of the valuation will be understood:
- In case of Valuation of the value of a share in an immovable good: The valuated value of the entire immovable good;
- In case of Valuation of the value of a right to an apartment or of a right of membership of a cooperation: The valuated value of that right to an apartment or that right of membership;
- In case of Valuation of the value of premises on long term lease ground or the right of long term lease (whether or not with the rights of the long term lessee on the premises): The valuated amount, increased with the amount that is equal to the tenfold of the current long term land lease amount on an annual basis;
- If the commission concerns on more than one sort of value, or if it for the release of the required valuation is necessary to assess also other sorts of values and these assessments are stated in the report: The value of which the agreed commensurate rate calculation gives the highest outcome;
- In case of a Valuation for the benefit of a mortgage loan: The private sale value, unless this is lower than the execution value.
Part 4. Real estate management
Article 19 Real estate management (management)
- Real estate management is the provision of services to the Consumer with regard to one or more immovable goods, that the benefit, the maintaining and the exploitation contribute to an optimal return of the invested financial means. The Consumer that grants commission to real estate management, can be the owner or the person that has the immovable goods in possession or otherwise under his control.
- The services to be provided can be of both a commercial and technical or administrative nature. The services below can among others belong to the service package of a real estate manager:
- Arranging for rental collection;
- Involvement with additional deliveries and services (administrative processing, settlement with lessees, control on the quality of the deliveries and services);
- Arranging of the payment of costs and charges;
- Activities in relation with periodic lease price changes;
- Arranging of the maintenance (treatment, assessment and the amending of complaints, periodic inspection, long term planning, arranging of and verification of control and payment of bills);
- Arranging for new leases of parts becoming vacant and other activities with regard to lease mutations;
- Giving advice.
Withdrawal of a commission to real estate management must take place by preference in writing or electronically. In case of withdrawal a notification period of at least 3 months must be observed.
- The commission can also encompass the fulfilment of the function of the Board of an Association of Owners of rights to apartments or the function of secretary-treasurer of a cooperative association to exploitation of immovable goods.
Part 5 Dispute regulation and industry warranty
Article 20 Dispute regulation
- Disputes between Consumer and the estate agent over the conclusion or the execution of agreements with regard to services provided or to be delivered by the estate agent, can be submitted both by the Consumer and the estate agent to the Geschillencommissie Makelaardij, Bordewijklaan 46, 2591 XR Den Haag, the Netherlands (www.degeschillencommissie.nl).
- With regard to disputes over liability for damage the Dispute Committee is only authorised if these do not exceed a financial interest of 10,000 Euro.
- A dispute will only be treated by the Dispute Committee, if the Consumer has firstly submitted his complaint fully and clearly described to the estate agent.
- After the complaint has been submitted to the estate agent, the disputes must be presented no later than three months after the emergence thereof to the Dispute Committee. When the Consumer submits a dispute to the Dispute Committee, then the estate agent is bound by this choice. If the estate agent wishes to present a dispute to the Dispute Committee, then he must ask the Consumer to express himself within five weeks whether he agrees therewith. The estate agent must thereby announce that he will be free to turn to the civil courts after the expiry of the aforementioned term.
- The Dispute Committee will render a decision taking into account the stipulations of the regulation applicable for it. The decisions of the Dispute Committee take place by way of binding advice. For the treatments of a dispute a fee is payable.
- Solely the courts or the abovementioned Dispute Committee are/is authorised to take knowledge of disputes.
Part 6 Deviation and changes
Article 21 Deviation
Individual deviations must be recorded in writing or electronically between the estate agent and the Consumer.
Article 22 Changes
Residence 365 B.V. is authorised to change these GTC Consumers periodically and on its own initiative and to publish it electronically on its website www.residence365.nl