Enforcement disputes in the division of jointly owned real estate
Provisional relief judge blocks enforcement auction of a home in a protracted property dispute
After the end of their relationship in 2018, two former partners became embroiled in a battle over fifteen commercial rental properties in Rotterdam that they jointly own. Various proceedings have been ongoing since 2020. In proceedings on the merits, the Court of Appeal in The Hague allocated the properties to the woman against payment of over €1 million in surplus value, but the man has lodged an appeal in cassation. Proceedings on the merits, preliminary relief proceedings and cassation are now running simultaneously.
The man escalates along two tracks. In his personal capacity he enforces an irrevocable preliminary relief judgment of the Court of Appeal in Amsterdam — €42,475 in overdue rental income plus costs — and has an enforcement auction scheduled for 19 March 2026 of the Amsterdam home where the woman's daughter lives with her children, including a minor. Through his private limited company (BV) he enforces a judgment on the merits of the Amsterdam District Court, declared provisionally enforceable, for €200,000 plus interest and legal costs, and levies attachment on bank accounts, seven properties on the PC Hooftstraat, and funds held by the bailiff.
The woman issues a writ of summons in two parallel preliminary relief proceedings, both heard and decided on 6 March 2026 by the same Rotterdam provisional relief judge.
Judge dissects cost claims and rejects a disguised appeal
In the first preliminary relief proceedings, the provisional relief judge acknowledges that the enforcement was in itself lawful: the woman had not paid on time and there is no abuse of power within the meaning of Section 3:13 DCC. But the cost specification submitted by the man at the hearing — drawn up by himself — largely does not hold up.
Of the €73,913 claimed in additional costs, €21,315 remains after review. The interest is insufficiently substantiated. The penalty payments are reduced from €44,500 to €1,000: the woman did give the instruction to pass on the rental payments two days late, but she did do it — the manner in which she did so "left something to be desired", according to the provisional relief judge. Auction costs, notary costs and land registry costs stand. Of the €13,552 in lawyer's fees, the judge allows 50%. Total owed including the principal sum and deposits: €82,588.93. Once that amount is paid, all attachments must be lifted and the auction halted — on pain of a one-off penalty payment of €150,000.
The man's counterclaim to collect a further €144,244 through these proceedings fails. An earlier Rotterdam judgment that lifted the woman's attachment on funds held by herself (eigenbeslag) had not been declared provisionally enforceable, so the appeal suspends its enforcement. The man tries to break through that situation, but the provisional relief judge qualifies this as a disguised appeal, which has no place in an enforcement dispute.
In the second preliminary relief proceedings against the BV, a similar dynamic plays out. The BV claims €243,597 but acknowledges at the hearing that it has no title for the amount exceeding €236,616. A reliance on a settlement said to have been reached fails: on behalf of the BV, the bailiff made a counter-proposal — an additional €1,500 — that the woman did not accept. No meeting of minds, the judge rules. After payment of €236,616.30, the BV must lift all attachments and is prohibited from taking further enforcement measures until final judgment is given or the parties reach a settlement.
What does this mean for parties taking or facing enforcement measures?
An enforceable title confers a right to enforcement, but the provisional relief judge guards the limits — especially where a home occupied by minors is at stake. Inflated cost claims, unsubstantiated interest items and attempts to circumvent an earlier judgment through enforcement-related preliminary relief proceedings backfire. The judge notes the "actively existing willingness to litigate" of the enforcing party in particular and orders each party to bear its own costs in both cases. Read more about enforcement disputes on the page on commercial litigation and the earlier discussions of enforcement and the rental clause and the limits on enforcement of penalty clauses.
Substantiate every enforcement item separately with documents, and do not count on an enforcement auction as leverage to collect more than there is a title for. A party who does so risks not only the rejection of the inflated items but also a penalty payment as a deterrent.
Frequently asked questions
Can the provisional relief judge halt an enforcement auction?
Yes. In enforcement-related preliminary relief proceedings, the provisional relief judge may suspend enforcement or make it subject to conditions where the enforcing party abuses its powers or where a balancing of interests so requires. This happens, for example, where the enforcing party seeks to collect more than there is a title for, or where the consequences of enforcement are disproportionate.
What is a disguised appeal in an enforcement dispute?
A disguised appeal arises where a party seeks, through fresh preliminary relief proceedings, to circumvent an earlier court decision — for example, by claiming in an enforcement dispute what in essence amounts to having an earlier judgment declared provisionally enforceable after all. The provisional relief judge rejects such claims: the appeal is the appropriate route for that.
What does the prohibition on prognosis mean during a pending appeal?
The prohibition on prognosis means that, in preliminary relief proceedings, the provisional relief judge may not anticipate the outcome of a pending appeal. In enforcement disputes this limits the scope for taking further-reaching measures. The judge may guard the limits of the existing title, but may not anticipate what the court of appeal will decide on appeal.
Provisional relief judge, Rotterdam District Court, 6 March 2026, ECLI:NL:RBROT:2026:2315 and ECLI:NL:RBROT:2026:2318.
Rotterdam District Court, 6 March 2026, ECLI:NL:RBROT:2026:2315.
Cited case law
District Courts: ECLI:NL:RBROT:2026:2315 · ECLI:NL:RBROT:2026:2318
See also
- Attachment and enforcement
- Reimbursement rights after a relationship: why cohabitants often end up empty-handed
- Evidentiary attachment does not limit the right of access: Supreme Court clarifies Section 843a DCCP
- Wage attachment valid but misses its mark: the garnishee declaration procedure
- Trustee in bankruptcy comes up empty: acquisition of customer base insufficiently substantiated
- Insolvency & Enforcement — more about this practice area