Foundation repair and the shared structural wall
An owner who has the foundation under a shared structural wall repaired usually pays first and asks the neighbour for a contribution afterwards. On 2 September 2026 the Amsterdam District Court awarded just over €63,000 on such a claim. What follows is the four questions that decide these cases: was the repair necessary, was there prior consultation, what apportionment applies, and which costs may be passed on.
Two Amsterdam owners' associations and a bill of €223,850
Two owners' associations of adjoining Amsterdam buildings fell out over a foundation. Between them stands a shared structural wall, held in common ownership (mandeligheid) under Section 5:62(2) DCC. It rests on the foundation of one of the two buildings. In October 2023 the engineering firm Duyts established that the wall was held in common. It also calculated the load on the foundation: 74.7 per cent from one building and 25.3 per cent from the other.
On the rate of subsidence Duyts wrote that a sound Amsterdam timber pile foundation usually settles by about a millimetre a year. At the wall on the far side of the claimant's building an average of 2.2 millimetres a year was measured over 1998 to 2018, rising to more than 4 millimetres a year since 2013 to 2014. For the wall shared with the defendant association no gauge readings existed, but from the differential settlement Duyts inferred about 2.0 millimetres a year. In August 2024 the Bureau voor Bouwpathologie advised that the repair be carried out within a year.
The neighbouring association kept refusing. In preliminary relief proceedings (kort geding) the provisional relief judge granted a substitute authorisation. The claimant association then had the works carried out for a contract price of €185,000 excluding VAT, or €223,850 including VAT, delivered on 28 May 2025. The neighbours paid nothing, and proceedings on the merits followed. The Amsterdam District Court awarded €63,194.01, together with €2,613.60 for the expert's fees, €1,702.40 in extrajudicial collection costs and €5,883.40 in costs of the proceedings.
What the court set aside first is worth noting. The claimant association argued primarily that the substitute authorisation had made the neighbours a party to the building contract, giving rise to a right of recourse. The court held that a judgment in preliminary relief proceedings does not bind the court on the merits, which may take a different view on every point (para. 4.1). The duty to pay therefore had to come from Section 5:65 DCC, under which property held in common must be maintained, cleaned and, where necessary, renewed at the expense of all co-owners.
Necessity is tested with restraint
The first question is whether renewal was necessary. That necessity is not to be assumed too readily, the Amsterdam Court of Appeal held as long ago as 2009. A broad reading confronts the neighbour with foundation costs unexpectedly and without warning, in a case where consultation was possible (para. 2.4). In that case one expert put the period for which the foundation could remain in service at fifteen years or more. Another put its remaining life at ten to fifteen years, and a third spoke of seven years before unacceptable settlement would occur. The court read that as an indication that necessity was absent.
The restraint has a floor. In its leading interim judgment of 27 January 2015 the Amsterdam Court of Appeal added that requiring a real and imminent danger of serious damage is too restrictive. Neither the statute nor its legislative history compels that reading (para. 3.3.5). The subdistrict judge in Rotterdam put it crisply in 2022: the concept presupposes no imminent danger, yet leaves no room for acting pre-emptively either (para. 2.3).
Where the line runs appears from the service period that foundation surveyors give. At a period of five to ten years the Rotterdam subdistrict judge held that necessity was absent. The rate of subsidence stood at around a millimetre a year at most (para. 2.7). That the municipality had announced measures to control the groundwater level then counted in the balancing of interests, which also came out in favour of the refusing neighbour (para. 2.13). At the other end of the line stands the municipal enforcement notice. An order subject to a penalty payment requiring foundation repair establishes both necessity and urgency, the Amsterdam Court of Appeal held. Increasing tilt, shattered windows and sticking doors are not required for that (paras 4.18 and 4.20).
Where necessity is absent, the case falls back on the ordinary law of co-ownership. Renewal goes further than management and therefore comes under Section 3:170(3) DCC, under which co-owners are competent only jointly. The refusing neighbour can then be compelled to cooperate only on grounds of reasonableness and fairness, which calls for the balancing of interests mentioned above.
Consultation in good faith decides whether the contribution stands
Once necessity is established, the duty to contribute follows in principle. Common ownership of this kind is a bound form of co-ownership in which the owners depend on one another. No one can demand a division. For a wall shared by two buildings, Section 5:66(3) DCC also rules out transferring one's own share. An owner who cannot dispose of his share does not escape the duty to contribute.
Against that stands an obligation. Reasonableness and fairness require the co-owners to consult in good faith on four essential aspects: the timing and method of the works, the choice of contractor, the costs, and the apportionment of the contribution. Suppose that consultation produces no agreement and the owner taking the initiative instructs a contractor anyway. The absence of agreement does not of itself release the other from the duty to contribute. Insufficient regard for the other's legitimate interests may, however, adjust the contribution to the initiator's disadvantage, in exceptional cases to nil (para. 3.3.3). The Hague and Amsterdam Courts of Appeal both adopted that standard in 2025, so it is settled.
What the adjustment is worth appears from two judgments. In 2016 the Amsterdam District Court reduced the contribution to the amount the neighbour had saved through the works, €15,856 rather than a share of the actual costs. What carried the decision was that from the moment of preparation the initiator held no further consultation. He also announced an application to the subdistrict judge over the amount of the contribution and then never made it, while the neighbour was entitled to rely on it (paras 4.10 and 4.11). It did not go to nil, because the neighbour took no initiative either.
The Hague Court of Appeal in June 2025 halved a contribution that would normally have run to half the costs, €19,041.33, to a quarter of them, €9,520. There the owners' association had applied for the permit, chosen the contractor, received the quotation and moved tenants out without any consultation at all. Its offer to bear the whole cost of the shared part did not repair that. The offer still bypassed any discussion of technique and contractor, and allowed less than three days for acceptance (para. 6.14).
Urgency is the exception. Where the repair cannot wait, an owner may instruct a contractor on his own without consequences for the other's duty to contribute. The parties may also displace the regime altogether: Section 5:69 DCC permits departure by an arrangement as referred to in Section 3:168 DCC.
The apportionment follows the load on the foundation
Section 5:65 DCC gives no standard for the apportionment. It provides only that the costs are shared, and there lies the third question. In the Amsterdam cases the allocation key is calculated from the weight each building transfers to the foundation through its walls. In 2021 the Amsterdam District Court arrived at 55.15 against 44.85 per cent, and the court of appeal adopted that in September 2025. Compensating one party's extra costs or the other's savings is not a sharing of the costs incurred, and is therefore unsuitable as a standard.
The judgment of 2 September 2026 continues that line against an alternative that looks simpler at first sight. The neighbouring association had its own adviser calculate matters. Four walls rest on the new foundation slab, each good for a quarter, and of the shared wall half belongs to the neighbour, hence 12.5 per cent. The court chose the Duyts calculation and so 25.3 per cent. One passage there reaches beyond this case: asserting that a calculation is complicated is not a reasoned denial of it, and one wall may bear more heavily on a foundation than another (para. 4.11). An owner who wants to challenge an allocation key needs a calculation of his own.
That share moreover applies to the full contract price and not only to the stretch of foundation under the shared wall. The reports concluded that 25.3 per cent of the total foundation repair benefited the neighbouring building, and against that the neighbouring association put nothing (para. 4.12). An equal split does remain the starting point where the load is not in dispute: in the Hague case of 2025 the court proceeded on a half share without argument.
Preparatory costs and moving tenants out count
That leaves the fourth question: which items go into the apportionment. The generous answer comes from the Amsterdam Court of Appeal's final judgment of 10 November 2015, which went through the invoices one by one. Architect's fees, the application for a listed-building consent, soil investigation, site supervision and a schedule of condition all belong to the foundation repair and qualify for reimbursement. That the final cost exceeds the quotation does not make it unreasonable. Unforeseen problems arise in practice, and there is no reason to leave those with the party on whose side they happen to fall (para. 2.19). Outside the apportionment fell the cost of rebuilding a demolished wall of the owner's own rear extension: the materials, €807.40 including VAT, and his own hours, estimated at €4,000 excluding VAT.
The 2026 judgment follows the same line: 25.3 per cent of the architect's and supervision fees, of the Duyts invoice and of the compulsory soil investigation was awarded. The cost of the tenant who had to move out temporarily counts as well, as it did in the Amsterdam case of 2021 and 2025. Three months' rent plus transport and storage of the fittings was allowed. The item on top of that was refused. That was compensation for lost turnover, expressed as five months' rent, with no explanation of why lost turnover should translate into months of rent (para. 4.16).
The thread running through both judgments is evidential. A reasoned report from a specialist foundation consultancy holds up against a denial that itself contains no calculation, report or technical material. The court of appeal called that a bare assertion in 2015 and the district court called it an unreasoned denial in 2026.
What should an owner of a shared wall do?
The first step is to establish the common ownership and the load. A structural calculation of the load distribution has become the standard in the Amsterdam case law. Whoever commissions that calculation first sets the terms of the debate. The second step is consultation that demonstrably covers the four essential aspects, with the quotations, the drawings and the allocation key on the table, preferably in writing. An owner who turns up only once he holds a permit, a contractor and a start date is announcing a decision rather than consulting, and that costs part of the contribution.
For the neighbour on the receiving end the lesson runs the other way. Refusing without a case of one's own rarely works. The duty to contribute survives the absence of agreement, and challenging the allocation key or an individual item calls for an expert of one's own. It does pay to start the consultation as soon as the neighbour's plans become clear, and to record the response to quotations and allocation key. It was exactly that absence of initiative that kept the contribution above nil in the Amsterdam case of 2016. One further defence is available where the foundation can still remain in service for five to ten years and no enforcement notice has issued: renewal is then not yet necessary within the meaning of the statute.
Frequently asked questions
When is a structural wall held in common?
A dividing wall shared by two buildings in different ownership is common property by operation of law under Section 5:62(2) DCC. No notarial deed is needed for that, unlike the creation of common ownership under Section 5:60 DCC. In the foundation case law the foundation beneath such a wall is treated as part of that common property. Engineers then calculate what share of the load on it comes from which building. English practice knows a comparable wall as a party wall, but the regimes differ. The Party Wall etc. Act 1996 works through notices, appointed surveyors and awards, whereas Dutch mandeligheid sits in the Civil Code and is enforced in the ordinary courts.
Must a neighbour pay towards major works that are not yet urgent?
Only where renewal is necessary within the meaning of the statute. Courts test that with restraint. They look at the service period in the foundation survey, the measured rate of subsidence and any enforcement notice from the municipality. A period of five to ten years was not enough in Rotterdam; an order subject to a penalty payment was enough in Amsterdam.
Can a substitute authorisation fix the neighbours' duty to pay?
It confers the power to have the works carried out, but it does not bind the court on the merits. That is why the Amsterdam District Court in 2026 passed over the argument that the authorisation had made the neighbours a party to the building contract. The contribution must then still be founded on Section 5:65 DCC.
Cited case law
Courts of appeal: ECLI:NL:GHAMS:2015:94 (Amsterdam, 27 January 2015, interim judgment, the governing framework: where repair is necessary the duty to contribute under Section 5:65 DCC applies even without agreement, subject to consultation in good faith on four essential aspects and a possible adjustment of the contribution); ECLI:NL:GHAMS:2015:4633 (Amsterdam, 10 November 2015, final judgment in the same case, which cost items count; preparatory costs belong to the repair, the owner's own rear extension does not); ECLI:NL:GHAMS:2009:BJ6267 (Amsterdam, 21 April 2009, necessity is not to be assumed too readily; a remaining life of ten to fifteen years and a period of seven years before unacceptable settlement do not establish it); ECLI:NL:GHAMS:2025:2556 (Amsterdam, 30 September 2025, appeal from the Amsterdam District Court judgment of 8 September 2021; an enforcement notice and penalty payment establish necessity and urgency, load distribution as the allocation key, the cost of moving a tenant out counts); ECLI:NL:GHDHA:2025:1065 (The Hague, 10 June 2025, the same standard; the complete absence of consultation brings the contribution down from half to a quarter, from €19,041.33 to €9,520).
District courts: ECLI:NL:RBAMS:2026:9083 (Amsterdam, 2 September 2026, dispute between two owners' associations; a substitute authorisation does not bind the court on the merits, an allocation key of 25.3 per cent on the load calculation and applied to the full contract price, €63,194.01 awarded); ECLI:NL:RBAMS:2021:7943 (Amsterdam, 8 September 2021, interim judgment, Section 5:65 DCC gives no standard for the apportionment and compensating extra or saved costs is not a sharing of costs); ECLI:NL:RBAMS:2016:791 (Amsterdam, 24 February 2016, insufficient consultation brings the contribution down to the saved costs of €15,856, and not to nil because the neighbour took no initiative either); ECLI:NL:RBROT:2022:3362 (Rotterdam, 25 March 2022, judgment after an expert report, renewal not necessary within the meaning of Section 5:65 DCC where the foundation can remain in service for five to ten years, leaving the balancing of interests under Section 3:170(3) DCC).