In practice, initiators of real estate development have to deal with municipalities that impose all kinds of requirements on buildings. Such as in the area of energy efficiency (BENG) and safety (police certification). It is often not considered that the law does not always allow for such agreements. This is because the Housing Act (Section 122) stipulates that municipalities cannot make private law agreements regarding subjects that are (in short) regulated in the 2012 Building Code. If they do, such an agreement is null and void. That things usually go well in practice is because developers usually see opportunities to pass on the costs of such additional facilities to the home buyers.
Sometimes, however, a discussion of principles is conducted at the sharp end. And then things often go wrong for a municipality. The municipality of Tytsjerksteradiel had provided housing plots with a rainwater circuit. The buyers were required to buy a control system from the municipality and install it in the house at their own expense.
The Northern Netherlands court rules that the municipality may not impose this requirement. It is a technical building requirement. The 2012 Building Code, according to the court, contains all the building requirements that apply to structures in the Netherlands. Those regulations include the drainage of rainwater. The contract provision about the rainwater circuit is therefore a supplement to the 2012 Building Code. The court ruled that the contract provision was null and void.
This problem is not solved by the Environment Act: Article 23.7 of the Environment Act contains a provision with the same content as Article 122 of the Housing Act. Municipalities wishing to adopt progressive climate policies feel hampered by this provision.
There are two solutions to this problem:
- Delete Article 122 of the Housing Act (and soon to be Article 23.7 of the Environment Act);
- through the 2012 Building Code provide the legal basis for implementing climate-proof engineering measures.
An example of the latter is the recent amendment to the 2012 Building Code, which requires new construction under the law to meet BENG requirements.
This contribution was written by Mr. Rudolf van Binsbergen affiliated with the Real Estate Practice Group.
