What does property encumbered with superficies actually mean? In this article, we will take you through the right of superficies. The piece of land (the property) is in some situations subject to building rights. The landowner will then have to take into account the (property) rights of the person who has acquired a building lease when using his property. That person is the claimant.
Building rights are also called right in rem. A right of superficies allows you to own or acquire buildings, plantings or other things in or on someone else's property. Ownership is the most comprehensive right a person can have over a thing (5:1 BW). As owner, you can therefore dispose of your property as you see fit and deny others the use.
An important feature of Dutch law is the dichotomy between movable and immovable property (3:3 BW). Land is an immovable property. However, buildings, cables, pipes and plants that are permanently united with this land also count as immovable.
The law also states that ownership of the land also includes the buildings and works present on or in this land. In practice, this means that when you build a house on someone else's land, for example, this house becomes the property of the landowner. This is called "netting" (5:20(1) jo 3:3 jo 5:3 BW).
To prevent this accession, a building lease must be established. The building and planting rights prevent the landowner from becoming the owner of a dwelling or other property built on the land. The ownership of the property is separated from the ownership of the land.
In principle, a building and planting right arises when a notary is appointed to draw up a notarial deed. The notary then takes care of registration in the public registers. The public registers can be accessed through the Kadaster.