B.F.U. Cuijpers & I. Visser

A (limited) number of civil law instruments are available to landowners when granting long-term use rights for (building) land. One possibility will often be to establish a right of groundlease on the land (uitgifte in erfpacht). Another possibility is to lease (huur) the land. In order to enable financing and create a more secure right, a right of superficies can be added to the lease (huuraanvullend opstalrecht).

In return for the granting of a use-right, the user will (in almost all conceivable examples) take on the obligation to pay a sum of money. The qualification of (the title of) this payment obligation differs depending on the legal construction chosen. For instance, in the case of a right of groundlease (generally) the payment will be shaped through the ground rent (canon) (Art. 5:85 paragraph 2 of the Dutch Civil Code). In the case of a lease accompanied by a right of superficies, the payment obligation can find its origin in the lease agreement (in the form of rent) or from the right of superficies (in the form of retribution (retributie)).

An important consideration when choosing the most suitable legal construction, is that the payment obligation should be as “bankruptcy-proof” as possible: the landowner wishes to be assured of payment of the (periodic) sum of money as much as possible even if the user can no longer meet any of its payment obligations (and eventually files for bankruptcy).

For specifically the qualification of the ground rent payment obligation in the right of groundlease, the Supreme Court (Hoge Raad der Nederlanden) recently rendered an important judgment. The Supreme Court ruled that the obligation to pay the ground rent should be qualified as a qualitative obligation and not as a obligation embedded in the right of groundlease (goederenrechtelijke verplichting). Consequently, the canon payment obligation does not qualify as a current debt of the bankrupt estate (boedelschuld)  and in the event of the leaseholder’s bankruptcy, the landowner cannot have his claim paid directly by the bankruptcy trustee (curator) (see HR 19 January 2024, ECLI:NL:HR:2024:56).

This judgment gives new color to the focus for landowners to be sure of the fulfilling of the payment obligation in the user’s bankruptcy. This is particularly important if the landowner is unwilling or unable to terminate the right of groundlease in the event of bankruptcy. The position of a lessor (verhuurder) in the event of the lessee’s bankruptcy is considerably stronger than the position of a landowner who has issued its land through a right of groundlease. We discuss this in more detail below.

When a lessor faces a bankrupt lessee, and if this lease is continued by the bankruptcy trustee (gestanddoening door de curator), the rent is a current debt of the bankrupt estate and will be paid directly. If the lessor decides to terminate the lease, the trustee of the lessee will still have to pay three months’ rent as a current debt of the bankrupt estate.

In contrast, the landowner who finds himself faced with a bankrupt leaseholder is due to (i) submit the ground rent due to the bankruptcy trustee of the leaseholder as a verifiable claim (verifieerbare vordering) from the moment of bankruptcy and (ii) wait, in accordance with the mandatory provisions of 5:87 paragraph 2 of the Civil Code, until the bankruptcy trustee of the leaseholder has not fulfilled the payment obligation for two consecutive years, before he can terminate the leasehold right.

The underlying case  in the aforementioned Supreme Court judgment involved an oil processing company. The case histories showed that the physical zoning was very closely tailored to the wishes of the specific leaseholder. This made the right of ground lease difficult marketable and also meant that, if the ground lease was terminated, the landowner would still have to incur many (non-recoverable because verifiable) costs to prepare the land for a new occupation. Looking at the (future) granting of user rights to land users with very specific (environmental) requirements, it can be advisable to seek advice on alternative forms, such as leasing the land and additionally establishing a (mortgagable (verhypothekeerbaar)) right of superficies. In addition, landowners with already issued rights of groundlease (bestaande erfpacht) may find it useful to pay attention to the risk of bankruptcy of their leaseholders (and the following failure of payments due) and subsequent scenarios.

If you would like to know more about this, please contact one of Q.G.M’s specialists.