A right of superficies is the real right to own buildings, works or plantings on, in or above land belonging to another. It breaks the general rule of accession, under which the owner of the land would otherwise own everything on it.
Legal basis
Article 5:101 of the Dutch Civil Code defines the right and provides that it may be created independently or made dependent on another right, such as a ground lease or a lease. It is created by notarial deed with registration in the public registers. Article 5:102 allows a periodic payment to be agreed. Article 5:104 applies the provisions on ground lease by analogy, among other things to termination and to compensation at the end of the right. Article 5:105 governs what happens to the structures at the end: the landowner becomes owner and in principle owes compensation, unless otherwise agreed.
How it works in practice
The right is widely used for solar parks, wind turbines, charging infrastructure, cables and pipelines, and for building on another’s land. The deed should address four points: duration, the periodic payment and its indexation, what happens to the installation at the end, and whether the right is transferable and capable of being mortgaged. The last is decisive for finance, since a bank will want security over the right itself.
Where it goes wrong
The deed contains no provision on removal at the end, leaving it unclear who bears decommissioning costs. A second error is a prohibition on transfer or mortgage, which makes financing impossible. Third, the duration of the right does not match the term of the underlying operating agreement.
Related terms
The right sits alongside the ground lease and the easement, and in renewable projects connects to energy storage.
Creating a right of superficies for an installation? Our real estate law specialists draft the deed.
