Notary receives no payment for amendment to deed of division of owners' association

The notary who executed a deed in 2016 whereby the deed of division of an association was amended, will not be paid for this. The judge ruled that the owners' association was not the client. And the member of the owners' association who had given the assignment had not been sufficiently informed about the costs. The notary therefore worked for nothing. He also has to pay the legal costs of the homeowners' association. This follows from a ruling by the Amsterdam District Court on May 22, 2025 (ECLI:NL:RBAMS:2025:3168). The lawyer contract law van Lexys explains how that is possible.

Order to amend the deed of division

The notary's involvement began after the court ordered the members of the owners' association on August 29, 2008, to bring the deed of division into line with the provisions of the disposition was decided. A few years later, one of the members of the owners' association contacted the notary. The notary then amended the deed of division and sent an invoice for €5,979.10 to the owners' association on February 3, 2016. The owners' association did not pay the invoice.

Notary initiates debt collection procedure

The notary does not accept this and has summoned the HOA member who instructed him and the HOA to appear in court on February 4, 2025. After almost 10 years, the claim has increased significantly: including commercial interest the claim amounts to more than €13,400. In addition, the notary wants the collection costs he incurred to be reimbursed. The HOA engages a lawyer and mounts a defense. The HOA member who gave the order to amend the deed has mitre let go.

The homeowners' association is not a client.

However, the judge dismissed the notary's claim. The owners“ association is not a client. Furthermore, instructing the notary to amend the deed following a court order is not one of the owners' association's tasks. This is not included in the owners' association's terms of reference as set out in the deed. Those terms of reference are limited to "representing the common interests of the owners”. Incidentally, it is ironic that the judge quotes from the division regulations of the owners' association, which were amended by the notary. In any case, given its statutory remit, the owners' association cannot be regarded as the client.

The HOA member was the client, but he is a consumer and is therefore protected.

Although the VvE member was the client, he qualifies as a consumer. However, the notary did not inform him in advance of the costs of his services. Although the consumer signed a power of attorney to amend the deed and agreed to its contents, this is not sufficient. The notary had not yet fulfilled his legal obligation to provide information about his fee and any expenses. The court stated:

“Although it is understandable that no exact total amount can be given prior to the conclusion of the contract for services, [the claimant] could and should have provided information about this by means of a confirmation of the contract and could at least have given a (provisional) estimate of the number of hours or an amount, especially since it concerned a clear, reasonably defined contract. There is no evidence that the defendant parties were informed prior to concluding the agreement that an amount equal to the invoiced amount would have to be taken into account.”

Notary worked for free

The conclusion is therefore that the notary ultimately worked for nothing. The question is whether the ruling would have been different if unjust enrichment had been invoked. In my opinion, the owners' association, or at least the community of owners, has been enriched because the deed has been amended in accordance with the court order issued in 2008. That enrichment was at the expense of the notary. This matter may therefore be pursued further.