Proceedings / Effects of Registration

Can judicial decisions opening insolvency proceedings be registered in the Land registry in accordance with your legislation?

If affirmative, what effects do these registrations produce?

The opening of an insolvency proceeding as defined in article 2 (7) of Regulation (EU) 2015/848 can be registered in the land register on the basis of article 3:17 (1) (e) Civil Code (“Burgerlijk Wetboek”; hereafter: BW), provided that they “concern the legal status of registered property or the power of disposition over such property” (English translation of art. 3:17 (1) € BW was obtained from: http://www.dutchcivillaw.com/civilcodebook033.htm .

Its registration in the land register is optional (article 3:24 (2) (b) BW), but it must be registered mandatorily in the insolvency register of the lower court in The Hague (article 19b Insolvency Act (“Faillissementswet”); hereafter: Fw) and in the Central Insolvency Register (article 19a Fw) and published in the Government Gazette (“Staatscourant”) (Article 14 (4) Fw. In order to realize these registrations and publications, the insolvency practitioner is to contact the clerk (“griffier”) at the lower court in The Hague.

The entering of such a judicial decision constitutes a warning to third parties who consult the land register. As such, it does not restrict subsequent registrations. This is due to the fact that the Netherlands adhere to a negative registration system which reserves a passive role for the registrar. Therefore, once the (subsequent) deed of transfer fulfils the registration requirements, it will be registered (article 3:19 (1) BW). However, the registrar will then contact the notary who requested the registration of the deed of transfer to alert him of this situation. In the event that the notary decides to not take any action, the registrar is entitled to warn the concerned parties on the basis of article 3:19 (4) BW so that they are aware of the situation and able to take action if necessary.

In the Netherlands, the registration of such a judicial decision in the land register would typically fall under the responsibilities of the insolvency practitioner, though it is in principle also possible for others (such as the debtor) to request the registration.

Each lower court (“rechtbank”) keeps their own insolvency register (articles 19, 222a, 294 Fw). In addition, a Central Insolvency Register (“Centraal Insolventieregister”) (articles 19a, 222b, 294a Fw)) exists, which contains information on insolvencies from 1-1-2005 onwards. The Central Insolvency Register can be found via http://insolventies.rechtspraak.nl  In these registers, all judgements in which a (natural/legal) person is declared insolvent are consequently registered. The Kadaster is not actively warned by the keepers of these registers, considering that the registration of these judicial decisions in the land register is optional and that it is on the insolvency practitioner to take the necessary steps to effectuate this registration.