The schriftelijkheidsvereiste (written-form requirement): what is it? Your offer has been accepted. You're over the moon. At last…. Your offer has been accepted. You're drinking champagne and have Pinterest open on your laptop. You can't wait to move. Just a quick check of everything you need to arrange. Help, that's a lot!
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The estate agent calls. You think it's just to check something. But it's bad news. A higher offer has come in. They're selling the home to another party. Strange, isn't it? You made your offer by tender. All offers had to be in before a certain time. You've even received a confirmation by email. No way is someone else going to run off with your house. That's not fair. All those estate agents are crooks! A verbal agreement is still an agreement, isn't it? And you have the confirmation by email. Surely that even makes it a written agreement? Unfortunately, that's not the case. Even if you've already received the draft purchase agreement, it's not yet a binding agreement.
The written-form requirement
In 2003 a new law came into force. When private individuals buy and sell a house, a verbal agreement is no longer an agreement. By law, the purchase of a residential home must be recorded in writing: the schriftelijkheidsvereiste. So ‘in writing’ doesn't mean a WhatsApp message, text or email, but a purchase agreement signed by both parties. But there are exceptions. So watch out! If there's a professional party involved, the rules are different.
NVM diagram of the written-form requirement
Protecting the buyer
The rule was introduced to protect the buyer. With a verbal agreement, it was often hard for buyers to determine when the purchase had been concluded. It was sometimes a bit of a grey area. Conditions weren't discussed and included properly enough. At the moment, in fact, this rule doesn't really protect the buyer at all. For the buyer, the key thing now is to have the purchase agreement signed as quickly as possible. Once the seller has signed the purchase agreement, the seller can no longer sell to another party. Well, they can, but that's another complicated matter. Unless you don't sign within the number of working days stated in the purchase agreement; then the seller can sell to another party again. Complicated, isn't it? We understand. That's why it's smart to have the purchase agreement properly explained to you and to understand all the rules. We always carefully explain the purchase deed to our buyers and sellers. As a buyer you can of course also include conditions precedent (get-out clauses). In that case, as a buyer you can still withdraw. Or you can cancel without giving a reason during the 3-day cooling-off period.
Regulation
On 22 March 2022, RTL wrote that disciplinary rules for estate agents were coming for unfair practices. It explicitly mentioned: “An accepted offer that is still called off because a higher offer has come in after all, or friendly estate agents who strike a little deal between themselves: there are a great many complaints about practices like that.” Here RTL didn't do its research properly. Of course friendly agents aren't allowed to strike little deals between themselves. But we're obliged to pass on every offer. If we didn't, we wouldn't be doing our job to the best of our ability and in good conscience. We have to point out to our sellers what their rights and obligations are. We're paid to get the best deal. We're really not happy with these kinds of practices either. In fact, we often advise sellers to stick with the first offer. Yesterday I ran a poll on Instagram asking who would accept the higher amount. The result was blunt: almost 70% would choose the higher offer.
Protecting the seller
As a buyer, you can't force the seller to sign the purchase deed. So the seller is allowed to go with someone else. The seller may sell to another party as long as there's no signed purchase agreement yet. This feels very unfair, and perhaps it is. However, without a signed purchase agreement you can't enforce the purchase.
These rules apply to private individuals. Different rules apply to professional parties. So make sure you're well informed. Also check carefully whether you yourself count as a professional party. This can have to do with your profession or with what you own. So it doesn't always depend on whether you're buying as a private individual or through a company.
So whenever you buy or sell a house, always make sure the paperwork is sorted as quickly as possible. That way both parties have to stick to the agreements made. Do you have a question about this article? Then get in touch with us.
