Notary liable for error in amending subdivision deed

The Arnhem-Leeuwarden Court of Appeal has ruled that a notary is liable for an error that caused 138 apartment rights to lapse (ECLI:NL:GHARL:2025:4774). In fact, the notary had passed the deed that regulated it, violating his duty of care and warning.

Notary amends subdivision deed on behalf of VvE

The notary had executed the deed on behalf of the CoE in 2016. At the meeting of the VvE, it had been decided that the notary would be instructed to amend the division deed. The amendment involved creating two additional apartment rights. In addition, a ramp would be installed to allow access to the second floor. The owners issued a power of attorney to the board to instruct the notary. Well settled would you think? So not...

Notary fails to disclose that 138 apartment rights lapse

Indeed, the amendment of the division deed also involved the cancellation of 138 apartment rights that had not yet been realized. These apartment rights were owned by Reimert Groep B.V., which was unaware that its property would lapse with the passing of the deed.

Reimert therefore went to court. The judge ruled that the notary should have informed and warned Reimert about the lapse of her property. According to Reimert, the notary had made a professional error by failing to do so. The District Court agreed with Reimert, but the notary appealed.

Notary's duty of care and warning

The Court of Appeals ruled in line with the District Court. According to the Court, the notary, as a contractor (within the meaning of article 7:401 BW) the care of a good contractor. In Article 43 of the Notary Public Act include regulations on the notary's obligation to provide information when performing a notarial deed. For example, the parties to the deed must be given a timely opportunity to acquaint themselves with its contents.

The idea behind this provision is that the notary must ensure that the parties can allow the contents of the deed to sink in, in order to examine its consequences. In addition, the notary must provide an explanation of the contents of the deed, pointing out (if necessary) its consequences. Therefore, in cases such as the present, the notary cannot suffice with a general explanation, but will have to make clear what disadvantages or risks the legal act has. This includes the obligation to ensure that the party concerned understands the consequences.

Notary must alert affected parties to consequences of deed

Since the deed was detrimental to Reimert, the notary should have ensured that Reimert had actual knowledge of the draft deed. He should also have pointed out to Reimert what the consequences of the deed were for him. The notary failed to do so. Also from the text of the power of attorney, according to the Court, Reimert could not know that his apartment rights would be cancelled.

According to the Court, the notary therefore seriously failed in his information and warning obligation to Reimert. In doing so, the notary committed a professional misconduct and is liable for damages.

Appeal of breach of complaint duty and statute of limitations

The notary still relies on statute of limitations and violation of the complaint duty by Reimerswaal, but those defenses fail.

“In answering when the statute of limitations began to run in this case, the following circumstances are relevant:

- Reimert did not instruct the notary to cancel the apartment rights;

- The VvE board did not notify Reimert before or when the deed was executed that it would cause her apartment rights to lapse;

- Nor did the notary inform Reimert of this, although, as considered above, he was obliged to do so under his duty to inform and warn. Nor did the notary fulfill his obligation to send the draft deed to Reimert in a timely manner.”

In fact, Reimert did not actually find out that his apartment rights had lapsed until 2021. As a result, the claim was not yet time-barred and the complaint period had not begun to run earlier.

The notary further appealed to own fault, but that defense also failed. According to the Court, Reimert did not have to take into account that his apartment rights would expire.

Notary liable for professional misconduct

The court upheld the judgment of the court in which it was ruled as a matter of law that the notary had imputably failed in his obligations to Reimert. The notary was therefore liable for the damages suffered by Reimert as a result.