Court whistles back subdistrict court over arbitration in VvE

On February 25, 2025, the Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:2025:1071) ruling on a dispute resolution provision in the subdivision regulations of a VvE. An apartment owner came into conflict with the VvE over renovations to her home. The VvE went to the cantonal court. In itself nothing special, were it not for the fact that in the subdivision deed of the apartment complex stood a specific regulation for such situations:

‘All disputes between the apartment owners as such and between the apartment owners on the one hand and the association of owners on the other shall be decided solely and exclusively in the highest instance by three arbitrators (arbitrators).’

Arbitration clause in VvE division deed

The owner pointed this out to the subdistrict court judge, stating that it did not have jurisdiction to hear the case. The subdistrict court disagreed, instead declaring that it had jurisdiction. The district judge ruled that there was no binding arbitration clause in the subdivision deed, but only an obligation of effort to investigate whether arbitration was possible for the parties. This was reason for the owner to move in appeal to go. And with success.

Court ruling: arbitration clause binding

The court of appeal then made short shrift of the district judge's ruling. According to the court, it was clear: Article 46 of the division deed stipulates that disputes between the VvE and apartment owners must be settled by three arbitrators, and therefore not by the court. The court thereby decided that the arbitration clause in the division deed is legally valid and both parties are bound by it. Thus, the subdistrict court indeed lacked jurisdiction to hear the dispute.

VvE must use arbitration if subdivision deed provides so

Those who choose arbitration in the subdivision deed (or any other agreement) must abide by it, even if a party prefers to go to court at a later date. That preference does not give a license to circumvent an agreed arbitration procedure. In fact, the court emphasized that the subdistrict court only comes into the picture if the parties fail to appoint three arbitrators. In that case, too, the task of the subdistrict court is then limited to appointing the arbitrators.

Arbitration or mediation clause: wording is essential

It always hinges on the wording of the clause in question. For example, in the summer of 2024, the Supreme Court ruled in a dispute where the parties had included a mediation clause in their agreement. In that case there was only an obligation of effort. It was also discussed that the basic principle is that everyone has the right to access to justice (Article 6 ECHR). That principle only leads to an exception if that right has been ‘unequivocally and voluntarily’ waived. The court that ruled on the VvE issue discussed in this blog held that this condition was met because the arbitration clause was included in the division deed and was clearly worded. Because the clause was included in the subdivision deed, the court found that the VvE entered into it voluntarily.

Arbitration in VvE not for nullity or voidability of resolutions

Another important point to note is that the arbitration clause does not apply when it comes to disputes over the nullity or voidability of VvE resolutions. The Supreme Court ruled on this in 2006 (ECLI:NL:HR:2006:AY4033). The reason for this is that a ruling on this also affects the interests of third parties. Those third parties are not parties to the arbitration clause. Therefore, intervention by the state court is necessary. You can read an extensive article about this at the website of Nederlandvve.

Lawyer in arbitration in VvE

Arbitration clauses in deeds of division should be taken seriously. In the event of a conflict, it is therefore wise to first check what the regulations say about dispute resolution. If in doubt, it is advisable to seek legal advice on this. After all, going to court while arbitration has been agreed upon can lead to unnecessary delays and costs. Do you have questions about such provisions in your division deed? Please contact our lawyer specialized in VvE law.