This question was recently raised in a case before the District Court of Limburg. The case was as follows:
At the time of the sale of a residential plot, it was stipulated that the purchaser or his legal successors “will never submit any objections of any kind under the applicable environmental legislation as well as in the area of planning to any government authority with regard to the agricultural businesses on the adjacent plots”.
The reason for this was that the vendor ran a livestock farm on the adjacent plots and wanted to prevent (future) residents from resisting his business activities at any time. A fine had also been stipulated if the buyer or his legal successors were to resist or if the buyer or his legal successors did not comply with the stipulation.
After some time, a new owner of the residential plot came forward. This owner deemed the clause to go too far and applied to the District Court of Limburg for a declaratory judgment that the clause was null and void because it was contrary to public order. The court agreed, for the following reasons:
- Not only the (original) buyer but also his legal successors are restricted in access to legal protection;
- There is a coercive element (fine) to ensure that succeeding owners will relinquish their legal protection;
- The clause is too broadly defined; there is no clear demarcation of what the waiver of legal protection relates to.
All these reasons – seen in conjunction – lead to the opinion that there is a conflict with fundamental legal principles, according to the Court. As a result, the clause is contrary to public order and is null and void. The principles of law in question include Article 17 of the Constitution, which states that no one can be deterred against his will from the court that the law grants him, and Article 6 of the ECHR, which states that everyone has the right to a fair and public hearing by an independent and impartial tribunal.
In assessing whether a stipulation can be regarded as ineffective, it is therefore important whether it restricts not only the parties to the stipulation but also its successors in title and has the effect of denying them access to legal protection. A stipulation is also more likely to be null and void if its successors are forced to waive legal protection by means of a fine. Finally, the scope of the waiver should be clearly defined. These must be specifically defined matters; an open set of matters is not acceptable.
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Marius Rijntjes (email@example.com)