Soil contamination is the presence of substances in the ground at levels that adversely affect its quality. In property transactions it is a recurring risk, because it affects the usability of the land, the scope for redevelopment and the value.
Legal basis
Since the Environment and Planning Act came into force on 1 January 2024, soil policy has largely been absorbed into environmental law, with the Environmental Activities Decree and the Quality of the Living Environment Decree at its core; the Soil Protection Act has largely lapsed, with transitional rules for existing cases. For building on contaminated land the municipality sets rules in the environment plan. A duty of care also applies: whoever contaminates the soil must prevent or undo it. In civil law, Article 7:17 of the Civil Code applies on a sale and Article 6:162 against the polluter, while Article 6:175 imposes strict liability for hazardous substances.
How it works in practice
In transactions a preliminary soil investigation under the NEN 5740 standard is standard; where there are indications, further investigation follows. The findings determine the contractual allocation of risk: a seller’s warranty, an indemnity, a retention from the price or a price reduction. For industrial sites the historical use should also be mapped, since former petrol stations, dry cleaners and metalworking are known sources.
Where it goes wrong
Buyers rely on an old investigation that does not follow current standards. A second error is a warranty covering only known contamination, leaving unknown cases with the buyer. Third, it is forgotten that remediation only becomes compulsory on certain activities, so the risk can remain latent for years and surface on redevelopment.
Related terms
Soil contamination connects to non-conformity, the environmental permit and the purchase agreement.
Buying or selling land with a history? Our real estate lawyers arrange the allocation of risk.
