Is Appointment Of A 'Projectnotaris', Under The Condition That Purchasing Costs Are Payable By The Purchaser, Unreasonably Onerous?

This is generally also accompanied by a transaction whereby the purchasing costs are payable by the purchaser, with the purchaser expected to pay the notarial fees, among other things. The Gelderland District Court recently rendered a judgment in preliminary relief proceedings on whether using a 'projectnotaris' in a transaction with purchasing costs payable by the purchaser places an unreasonable burden on the purchaser in question.

In the case before the court, the vendor was a housing association that always used a 'projectnotaris' appointed by it when selling properties. The intended purchaser was aware of this from the outset of the negotiations. The sales contract (a NVM contract) stated that the civil-law notary is appointed by the vendor and that the fees are to be borne by the purchaser. The purchaser openly disagreed with this provision, but nonetheless signed the (unamended) sales contract. The purchaser subsequently argued that the respective provision in the sales contract is an unreasonably onerous general condition because the purchaser would be obliged to enter into a contract with a third party (the civil-law notary).

It is true in itself that the starting point according to the law is that a general condition is unreasonably onerous if it obliges the counterparty to enter into a contract with a third party. This is a rebuttable presumption, however. The housing association argued that the stipulation can be reasonably demanded of the purchaser, since the...