2.1 The Transfer of Immovable Property

In the Netherlands, in order to transfer an asset, three requirements have to be met (section 3:84 of the Dutch Civil Code (hereinafter: BW)). Firstly, a transfer requires a valid title, i.e. an obligation to deliver; this title is most often a contract of sale that obliges the seller to transfer ownership of the immovable property. Secondly, transfer requires that the seller has the power to dispose of the property.1 This requirement derives from the Latin adage ‘Nemo plus iuris ad alium transferre potest quam ipse haberet’, meaning that no one is capable of transferring more rights than they have. Thirdly, transfer requires delivery of the asset. The delivery of immovable property is effected through a notarial deed that must be registered in the public land records (Section 3:89 BW).

It must be noted that there is no consensus among academics with regard to (the terminology of) these requirements. For example, Dutch academics are divided over whether a ‘real agreement’ is required for the transfer of ownership. There is also no consensus among scholars as to whether a ‘real agreement’ requires (or encompasses) a notarial deed and registration in the public land records.2 For the sake of practicality and clarity, this paper distinguishes between three relevant requirements for the transfer of immovable property; (a) the title, where the seller and the buyer express their intention to transfer the ownership and enter into the obligation to do so, (b) power to dispose of the property and (c) delivery, which encompasses every step taken to effect the transfer in accordance with the title. This distinction makes it easier to compare the procedural aspects with regard to the transfer of immovable property under Dutch law with these aspects under South African and Scottish law. For this reason, this distinction becomes especially relevant in section 4.