When a VvE fails its duties: legal remedies under Dutch law

If your owners association (Vereniging van Eigenaars, VvE) fails to maintain the building, keep a reserve fund or hold meetings, you can act yourself: Book 5 of the Dutch Civil Code (Burgerlijk Wetboek) gives every apartment owner routes to the kantonrechter (subdistrict court) and a claim against the association. The main exception is timing: a decision of the owners’ meeting can only be annulled if you file within one month of the day you could have known about it.

In practice there are four routes. You can ask the kantonrechter to annul a wrong decision (article 5:130 BW). You can ask for a substitute authorisation where consent is refused without reasonable grounds (article 5:121 BW). You can use the regulations to get a meeting convened. And you can sue the association to perform its duties and pay for your loss. Which route fits depends on one question: did the association take a wrong decision, take no decision at all, or fail to carry out a decision it did take?

What must a VvE do under Dutch law?

A VvE must manage the common parts of the building, keep a reserve fund and hold a meeting that adopts the accounts and the budget. Everything else it may or must do follows from the deed of division, the regulations and Book 5 of the Civil Code.

An owners association arises automatically when a building is divided into apartment rights. Every owner is a member by operation of law (article 5:117 BW). You cannot resign, and the association cannot refuse you; membership ends only when you sell. The association is a legal person (article 5:124 BW) with a limited statutory purpose: managing the community and protecting the interests of the joint owners. Most of the general rules for legal persons in Title 1 of Book 2 of the Civil Code apply to it as well, with the exceptions listed in article 5:124 BW.

What do the deed of division and the regulations decide?

The deed of division (splitsingsakte) decides what is private and what is common, and the regulations attached to it set the cost shares, voting rights and powers. Read them before you argue about anything else.

The deed of division is the notarial deed that created the apartment rights. It is registered in the public registers. It contains a drawing that shows which parts are private and which are common. It usually declares one of the standard model regulations applicable, often a model from 1973, 1983, 1992, 2006 or 2017. Those regulations are the constitution of your building. They set out the cost shares, the voting ratios, the powers of the board and the meeting, and the restrictions on use.

House rules (huishoudelijk reglement) may add practical rules on noise, refuse and the use of common areas. They cannot contradict the deed. A rule that belongs in the deed, such as a restriction on how you use your own flat, cannot be slipped into the house rules instead.

Whether a leaking window frame, a balcony, a terrace, the pipes behind your wall or the flat roof above your bedroom is common or private is decided in the deed, not by common sense. The answer decides who pays. Any provision in the governing documents that conflicts with mandatory law has no effect. The deed itself can only be amended by notarial deed, with the majority the law and the regulations require. In most buildings that is a large majority.

Who maintains the common parts?

The association maintains the common parts and charges the cost to all owners. You maintain your own private parts.

Management of the common parts is the core statutory task of the association (article 5:126 BW). It covers the structure, the roof, the facade, the foundations, the shared installations, the stairwells, the lifts and the common grounds. It includes keeping those parts in good repair and acting in time where safety is at risk. The association charges the cost to all owners according to the ratios in the deed.

Deferred maintenance is not an abstract problem. It causes damage inside private flats. It can also lead to liability towards visitors and neighbours: under article 6:174 BW, the possessor of a building that does not meet the standards one may set for it is liable for the damage it causes when that danger materialises.

Letting is a separate subject with its own rules. Whether and how you may let your flat, including for short stays, follows from the deed and from municipal rules, not from the maintenance obligation. We deal with that in our article on short-stay rentals and the owners association.

What are the rules on contributions, the reserve fund and the accounts?

Every owner pays a periodic contribution set by the meeting, and the association must reserve a statutory minimum each year for major maintenance. The board must account for the money every year.

The contribution, often called the servicekosten, is set by the meeting on the basis of an annual budget. The association must also keep a reserve fund for costs other than the ordinary annual costs. Since 1 January 2018, article 5:126 BW sets a minimum annual reservation for residential buildings. It is either the amount that follows from a multi-year maintenance plan (meerjarenonderhoudsplan) that is no more than five years old and covers at least ten years, or, without such a plan, at least 0.5% of the reconstruction value of the building each year. The reserve fund must in principle be held in a separate payment or savings account.

The board presents annual accounts and a budget to the meeting. Owners are entitled to inspect the underlying records. If an owner does not pay, the association can sue that owner.

A buyer also takes on part of the arrears. Under article 5:122 BW, the buyer and the seller are jointly and severally liable for contributions that fall due in the current and the preceding financial year. That is why the notary asks the board for a statement of arrears before completion. The buyer is then liable only up to the amount in that statement. Since 1 July 2008, every owners association must also be registered in the trade register of the Chamber of Commerce (KvK).

How do associations fail, and what does each failure cost you?

Failures come in four recognisable forms: inactivity, deferred maintenance, unequal enforcement and financial mismanagement. The remedy differs for each.

What if the association is dormant?

A dormant association (slapende VvE) is still a legal person with statutory duties, and any single owner can start reviving it. The first step is usually a properly convened meeting.

Inactivity is the most common failure in the Netherlands. There is no board, or the board is one owner who stopped calling meetings years ago. There is no budget, no reserve fund and no insurance review. Contributions are collected irregularly or not at all. Meanwhile it is your building that is falling behind.

A dormant association also causes a practical problem when you sell. Buyers and their lenders ask for the minutes, the accounts and the maintenance plan. If those are missing, the price drops or the sale fails.

A dormant association can be repaired. Under article 5:127 BW the chair and the board may convene a meeting. Most model regulations also allow owners who together hold a set minimum share of the votes to demand a meeting and, if the chair does not act, to convene it themselves. Check your own regulations for the exact threshold and notice period. Once a meeting is properly convened, it can appoint a board, adopt a budget, commission a maintenance plan and open the reserve account.

Municipalities have their own power to step in. Under article 5:127a BW, a municipality can ask the kantonrechter for authorisation to convene a meeting where a building seriously falls short of the maintenance standards. Municipalities use this power mainly in areas with older housing stock.

What if maintenance is deferred and damage reaches your flat?

You do not have to wait. An owner who suffers damage because the association failed to maintain a common part can hold the association liable and demand that the work be carried out.

The typical case is a board that meets but does not act. The roof has leaked for three winters, the report has been on the table twice, and the meeting keeps postponing the decision because a few owners cannot or will not pay. Meanwhile water reaches the top-floor flats. The association owes the joint owners proper management, and that duty does not disappear because some members object to the cost. Our note on leaks and falling roof tiles explains this in more detail.

What if rules are enforced selectively or unequally?

The association must apply the deed and the house rules consistently. A decision based on selective enforcement can be challenged as contrary to reasonableness and fairness.

Warning one owner about a balcony screen while ignoring three identical ones is not merely unfair. It weakens any later attempt to enforce the rule. Foreign fair-housing statutes, which are sometimes cited in this context, do not apply to a Dutch building.

Dutch equal treatment legislation does apply. The General Equal Treatment Act (Algemene wet gelijke behandeling) prohibits distinctions on grounds such as race, religion, sex and nationality, including in housing. The Equal Treatment on the Grounds of Disability or Chronic Illness Act (Wgbh/cz) does the same for disability and chronic illness. If you believe you are treated unequally on such a ground, you can ask the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) for a non-binding opinion, or go to the civil court. A refusal to allow a reasonable adjustment for a disabled resident, such as a ramp or a handrail in a common area, may fall within that framework. Where the association simply withholds its consent, the substitute authorisation under article 5:121 BW is often the more direct route.

What if the money is mismanaged?

Every owner is entitled to see the records, and a meeting should not adopt accounts it has not been able to check. Where money has disappeared, the association can hold the board or the manager liable.

Financial mismanagement takes several forms. Contributions are not collected. The reserve fund exists only on paper. Payments go to a company connected with a board member. There have been no accounts for three years. Or a manager mixes association money with his own.

Refusing discharge is a real instrument. Adopting the accounts and granting discharge to the board are separate decisions, and the second should not follow automatically from the first. Where funds have been misappropriated, a criminal complaint to the police is also an option.

How do you start inside the association?

Start with a written complaint to the board and a proposal for the meeting. A formal notice of default then prepares any later claim.

Almost every successful case starts with a paper trail. Report the problem to the board in writing. Describe it factually. Refer to the provision of the deed or the regulations that makes it the association’s responsibility. Attach photographs and any report you have. Ask for a written response within a stated period.

If no answer comes, or the answer misses the point, send a formal notice of default (ingebrekestelling). Set a final reasonable deadline for performance and state what you will do next. Under Dutch law that notice matters: without it, a debtor is generally not in default (article 6:82 BW), and a claim for damage caused by delay may fail for that reason alone.

Use the meeting as well as the board. Any owner can ask for an item to be placed on the agenda. A properly formulated proposal, with a quotation and a funding proposal attached, is much harder to postpone than a complaint. Keep the minutes. They are the evidence of what was decided and when, and the one-month period for challenging a decision runs from the day you could have known about it.

Where relations have hardened but everyone still lives in the same building, mediation is often more effective than a hearing. It can settle the whole relationship rather than a single decision. The same applies to disputes between owners themselves, where the general rules on resolving disputes out of court are a useful starting point.

Which routes lead to the kantonrechter?

Apartment disputes are heard by the kantonrechter of the district where the building is located. Choosing the right route matters more than the strength of your case on the merits.

Applications under articles 5:121 and 5:130 BW follow a relatively accessible petition procedure (verzoekschriftprocedure).

Annulment of a decision. If the meeting takes a decision that conflicts with the deed, the regulations or the requirements of reasonableness and fairness, you can ask the kantonrechter to annul it. Under article 5:130 BW you must file within one month of the day on which you learned of the decision or could have learned of it. That period is short and strict. The Hoge Raad has held that, where minutes are not usually circulated, an owner who missed the meeting may be expected to inquire within a week; the month then starts no later than the day after that week (HR 21 June 2019, ECLI:NL:HR:2019:1022). You do not have to attend the meeting to challenge a decision, but attending and having your objection minuted makes your case much easier.

A decision that conflicts with the law or with the deed may be void rather than voidable (article 2:14 BW, which applies through article 5:129 BW). No period applies to a void decision. Relying on nullity without advice is risky, however. The safe course is to file within the month.

Substitute authorisation. Sometimes you need the cooperation or consent of the association, its bodies or another owner for something you are entitled to do. If that consent is refused without reasonable grounds, or no decision is taken, the kantonrechter can grant an authorisation that replaces it (article 5:121 BW). This is the route for the owner who wants to install a lift, place solar panels, replace window frames, connect a heat pump or make another alteration that touches a common part, and who meets silence or an unreasoned refusal. The court weighs your interest against the interests of the other owners. It can also decide how the costs are shared.

Getting a meeting convened. Where the board does not call the meetings the law and the regulations require, the owners can use the convening rules in the regulations, as described above. This is the standard first step for waking a dormant association, and it is often enough on its own: once a meeting is properly convened, the association starts functioning again. Where the association then fails to take a decision that is needed, the substitute authorisation under article 5:121 BW is available.

An ordinary claim against the association. Annulment does not repair a roof. Where the association fails to perform its duty to maintain, the remedy is a claim for performance, if necessary backed by a penalty payment (dwangsom) for each day of delay, combined with a claim for the damage you have suffered. In urgent cases, such as a leak that makes a flat uninhabitable, preliminary relief proceedings (kort geding) can produce an order within weeks. The rules of Dutch civil procedure apply in the ordinary way, including the requirement to substantiate your loss.

Who pays for damage in your flat?

That depends on where the cause lies. Damage from a defect in a common part is in principle a matter for the association; damage from a defect in another owner’s private part is a matter between you and that owner.

Damage caused by your own private part is yours. The deed of division decides which part is which. In older buildings that boundary is often disputed, particularly for balconies, window frames, terraces and pipework.

Where the association is responsible, two bases can support a claim. The first is failure to perform its duty to manage and maintain. The second is the strict liability for defective buildings under article 6:174 BW. If the building does not meet the standards one may set for it and that danger materialises, the loss is borne without the injured party having to prove fault. That second route is valuable precisely where it is hard to show that the board knew about the defect.

Insurance is the practical answer to most of this. The association must insure the building. The building policy usually covers water damage and damage to fixed items. Contents and private improvements fall under your own home insurance. Report damage to both insurers promptly, photograph everything before repairs, and keep the invoices.

Where the loss is disputed, an expert report on cause and amount is what makes a claim for damages workable. General practice on compensation applies here as elsewhere. In severe cases, where neglect has made a home unusable for a long period, compensation for non-material loss may be claimed alongside the financial damage. Dutch courts award it sparingly.

How far does the responsibility of board members and managers go?

A board member must perform his task properly and is personally liable to the association only where he can be seriously blamed. A professional manager answers to the association under his contract, not to individual owners.

The board of an owners association is not a ceremonial body. Under article 5:131 BW it manages the association’s funds and carries out the decisions of the meeting. It also keeps the records and represents the association.

The general standard for the duties of a board in article 2:9 BW applies to VvE board members through article 5:124 BW. A director who performs his task improperly is liable to the legal person where he can be seriously blamed for it. Most board members of a small association are volunteers, and courts apply the standard with that in mind. Volunteering is not immunity, however. Failing to insure the building, ignoring a report that identifies an acute safety risk, or paying association money to yourself will be judged severely.

Where the association engages a professional manager, the contract determines what the manager owes. Typical tasks are convening meetings, keeping the accounts, collecting contributions, obtaining quotations and arranging routine repairs. A manager who fails in those tasks is in breach of contract towards the association.

The association, not the individual owner, is the manager’s counterparty. That matters in practice. If you are unhappy with the manager, get the meeting to act, because the contractual claim belongs to the association. If the meeting refuses to act on something that clearly harms the community, that refusal is itself a decision you can challenge. The wider framework of legal responsibilities of an organisation and of director liability is the same one that applies to other legal persons.

How can owners prevent these problems?

Prevention is mostly administrative: an up-to-date maintenance plan, a realistic budget, a separate reserve account and clear minutes. None of it is difficult.

Commission a multi-year maintenance plan and update it at least every five years. It sets the reserve contribution, spreads the cost and makes the association creditworthy if a loan is ever needed. Adopt a realistic budget rather than the lowest possible contribution. A low contribution is not a saving but a deferred bill for whoever owns the flat when the roof has to be replaced. Keep the reserve fund in a separate account. Review the insurance and the reconstruction value regularly. Record decisions clearly enough that they can be carried out and, if necessary, enforced.

Good governance costs little and prevents most disputes. Convene the meeting on time with a proper agenda. Circulate the accounts in advance. Minute the decisions and the objections, and publish the minutes. Require board members with a personal interest in a decision to say so and to abstain. Review the house rules every few years. Put anything that restricts the use of the flats themselves in the deed rather than in the house rules, because that is where it belongs and where it will hold. The principles behind a workable governance framework and the ordinary duties of legal compliance apply to a building with twelve flats just as they apply to a company.

What should you check before buying an apartment?

Ask for the minutes, the accounts, the budget, the maintenance plan and the reserve balance, and read the deed of division before you sign. This check is simple and should never be skipped.

Ask for the minutes of the last three meetings, the annual accounts, the budget, the maintenance plan and the balance of the reserve fund. Read the deed of division before signing, especially if you intend to let the flat or make alterations. Our overview of common pitfalls in Dutch property law and our checklist for buying a home together set out what else to check before you commit. If you plan to rent the flat out, the obligations that rest on a landlord are worth knowing as well.

What should you do now?

Read the deed of division, put your complaint and your proposal in writing, and get the item on the agenda. Note the date of any decision, because the one-month period for challenging it starts running straight away.

If the association still does not act, the kantonrechter is accessible and the procedures in Book 5 are designed for exactly this situation. We advise apartment owners, boards and associations on the deed of division and the regulations, annulment of decisions, substitute authorisations, maintenance obligations, arrears and liability for damage. Whether you are an owner facing an association that will not act, or a board trying to get a building back in order, our real estate lawyers can tell you where you stand under Dutch law and what a realistic next step is.

In summary

• A VvE must manage and maintain the common parts, keep a reserve fund that meets the statutory minimum and hold a meeting that adopts the accounts and the budget.
• Challenge a wrong decision of the meeting within one month of the day you could have known about it (article 5:130 BW).
• Where consent is refused without reasonable grounds or no decision is taken, ask the kantonrechter for a substitute authorisation (article 5:121 BW).
• Revive a dormant association by getting a meeting convened under the regulations; the municipality has its own route under article 5:127a BW.
• For neglected maintenance, send a notice of default and then claim performance and damages; in urgent cases use preliminary relief proceedings.

Frequently asked questions

These are the questions owners ask most often when their association does not do its job. The answers reflect Book 5 of the Dutch Civil Code; your own deed and regulations may add rules of their own.

Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.