Transfer of claims against third parties on a sale
A building is damaged by piling works on the adjoining plot. Its owner sells it, then sues those responsible, and loses, because his own deed of transfer had already assigned that claim to the buyer. What follows is the ruling, the reason a single clause in that deed decides the point, how the courts read it, and what buyers and sellers should do.
Owner loses piling damage claim through his own deed
On 11 June 2025 the Gelderland District Court dismissed a claim for €92,014.21 without reaching the damage at all. Unlawfulness, causation and the extent of the loss were left undecided. The claimant was ordered to pay the costs of two defendants, in each case together with those of a set of indemnity proceedings.
In October 2021 the owner of an adjoining plot had piling works carried out there. The claimant's commercial building stood next to it and was let. On the first working day the tenant complained to the site manager, the police, the municipality and finally to the regional environmental authority. That authority had the works stopped that Friday afternoon. The piling method was then adapted and the works completed. In July 2022 the insurer of the building confirmed that the damage fell outside cover.
In December 2022 the owner sold the building to his tenant. The purchase agreement treated the transfer of title as carrying with it all claims against third parties. It said so expressly for claims in respect of damage caused to the property. Article 8 of the deed of transfer provided that all claims the seller could assert against third parties passed to the buyer that day. A year later, in December 2023, buyer and seller signed a deed of assignment returning the claim to the seller, who then obtained a prejudgment attachment and began proceedings.
That attempt to put matters right came too late. Had the parties intended at the sale that the seller would pursue the damage himself, that intention ought to have been expressed in the purchase agreement and in the deed of transfer. Both documents said only that all claims against third parties passed to the buyer, and the claim in tort was not excluded from that transfer. Nor could the later deed of assignment be read as putting anything right: it presented itself as performance of an arrangement dating from the sale. The court set the claimant's case on this point aside as insufficiently substantiated, and inferred from the deed of transfer that the claim belonged to the buyer.
A claim in tort passes only by assignment
The court needed the deed because the statute governs only half of this. What passes to the acquirer with the property itself is dealt with in Section 6:251 DCC. That provision covers rights arising from a contract which are so bound up with a particular asset that their holder has an interest in them only while he keeps it. A subdistrict court in Limburg set out the conditions in 2017, in a case in which the same clause appeared in the deed of transfer. The right arises from a contract, it is capable of transfer, and it is bound up with the asset in that way. Where those conditions are met the right passes by operation of law, without the parties having to do anything. Rights arising from non-performance count as well, such as the right to damages in lieu of performance.
The first condition settles the matter here. There is no contract between the former owner and the neighbour who had the piling carried out. A claim under Section 6:162 DCC arises from the statute, and so falls outside that regime of rights passing with the property, which Dutch lawyers call a kwalitatief recht. On a transfer by particular title such a claim therefore passes only by assignment, and for that Section 3:94 DCC requires a deed intended for the purpose in which the claim is described with sufficient identifiability (Section 3:84(2) DCC). That is precisely why the clause carries the weight: it either is that deed, or it falls just short of being one.
The statute offers two routes and both appear in the case law. The first subsection calls for a deed together with notice to the debtor, the route the Hague Court of Appeal applied to a clause of this kind. The third allows transfer by notarial or registered deed without notice, provided the right already exists at that moment or will be acquired directly from a legal relationship already in existence then. Dutch practice calls this a stille cessie, an undisclosed assignment. A notarial deed of transfer qualifies, and in March 2026 a district court in Limburg held that a comparable article 9 indicated that transfer took place on the execution of the deed alone.
That case ran along the second limb: the claim was one of non-conformity arising directly from the purchase agreement, which already existed at completion. That the sellers there had already compensated their own buyers and wished to pursue their predecessors did not help them: they were held inadmissible, having assigned everything. Notice still matters to the debtor, because until it is given he may validly pay the former creditor.
Appeal courts read "all claims" to cover third-party damage
The clause usually lists architects, structural engineers, builders, contractors, sub-contractors, installers and suppliers. That list points towards construction defects, and an opposing party will argue that a neighbour who causes damage falls outside it. Two judgments of the Hague Court of Appeal point the other way.
In an interim judgment of 10 December 2019 the Hague Court of Appeal rejected the reading that such a clause covers only warranties given to the former owner. That reading is too narrow, given the general wording "all claims (…) in respect of the property sold". If the neighbour is found to have acted unlawfully towards the former owners, the resulting claims have been assigned to the buyer.
In September 2023 the same court worked this out under a heading of its own devoted to the claim in tort. On the court's reading, the introductory words before the list and the word "such as" before the description of the works showed that the list was not exhaustive, and nothing else in the wording suggested that claims in tort against other third parties were excluded. The wording of that deed helped: alongside works carried out it expressly named claims "in respect of damage caused to the property sold".
The argument that the claim had not been described with sufficient identifiability failed as well. A general description can support a valid assignment, provided it allows the claims transferred to be established. The court pointed in addition to the special provisions in the same deed, which named the claim in question in terms. And, as a separate holding of the Hague Court of Appeal of 26 September 2023, a claim in tort is in itself capable of assignment, including where the wrong was committed against the predecessor in title.
Identifiability remains the battleground, and that is where such a clause can founder. The Arnhem-Leeuwarden Court of Appeal of 19 December 2017 held that certain claims lacked sufficient identifiability even on that generous standard. They had not arisen under any contract, and they did not otherwise correspond to the wording chosen in the deed. The list in that deed was in fact a wide one, down to the words "and other third parties". The difference with the Hague cases lies in the nature of the claims. Those concerned the liability of directors, of group companies and of parties in an insolvency, none of which could be tied to anything in the deed, whereas damage to the property sold can be tied to it.
What does this mean for buyers and sellers?
For a seller with a live damage claim the lesson is short: settle it before completion, in both documents. Anyone who wants to keep the claim against the party responsible carves it out in the purchase agreement and in the deed of transfer, identifying the event and the party. An arrangement made orally and cast into a deed of assignment only a year later will not survive, as the Gelderland case shows.
The loss reaches beyond the seller's own claim. A seller who has assigned his claims against the contractor can no longer derive any rights from the contract for work; on that ground the Amsterdam District Court of 18 May 2022 dismissed his claim in indemnity proceedings, that seller having admitted the loss himself. A seller later sued by his buyer therefore stands alone.
For a buyer it works the other way round, with three things to do. Establish first whether the claim exists at all: the date of the damage against the date of completion, and the wording of both documents. Then give notice of the assignment to the party responsible, in writing, because without notice he may go on paying the former owner. Finally, make the description match the claim; where there is any doubt the buyer asks the seller for a supplementary deed identifying the claim by event, date and party, which takes the identifiability argument out of the proceedings.
The transfer does not release the seller from his own obligations. The buyer may also turn to the contractor, and the seller no longer can. That, the Amsterdam District Court held, leaves the seller's own liability intact where the property fails to meet what the buyer was entitled to expect (Section 7:17 DCC). Where the seller and the party responsible are each under an obligation to make good the same loss, they are liable jointly and severally under Section 6:102 DCC and the injured party chooses whom to sue. Any agreement that the party responsible must be pursued first has to have been made.
Frequently asked questions
Is the party responsible liable where the piling was carried out carefully?
It may be. The Supreme Court of 12 January 2024 held that where building works carry an appreciable risk of damage to the neighbouring building, even with careful preparation and execution, it cannot simply be accepted that the injured owner must bear that loss himself. It took into account that the works served the builder's interest alone and that insuring against liability lay rather with him.
Does the claim pass where the damage was still unknown at completion?
Yes. A district court in Limburg held in 2026 that a defect neither known nor discoverable at the time of transfer does not prevent assignment of the resulting claim by an undisclosed assignment. The condition is that the right already existed at completion, or arose directly from a legal relationship already in existence then. Where the damage has occurred, the right exists.
When does a limitation period start to run on an assigned claim for damages?
The five-year period in Section 3:310 DCC runs from the injured party's knowledge of both the damage and the person liable. On an assigned claim that is the former owner. Where he had known of the damage and of the party responsible for years, the buyer inherits only what is left of the period.
Cited case law
Supreme Court: ECLI:NL:HR:2024:17 (12 January 2024, where building works carry an appreciable risk of damage to a neighbouring building, even carefully executed works may be unlawful).
Courts of appeal: ECLI:NL:GHDHA:2023:1983 (The Hague, 26 September 2023, the list in the clause is not exhaustive and a claim in tort is in itself capable of assignment); ECLI:NL:GHDHA:2019:3175 (The Hague, 10 December 2019, reading the clause as covering warranties alone is too narrow); ECLI:NL:GHARL:2017:11497 (Arnhem-Leeuwarden, 19 December 2017, claims that do not correspond to the wording of the deed lack sufficient identifiability).
District courts: ECLI:NL:RBLIM:2026:2021 (Limburg, 4 March 2026, undisclosed assignment on the execution of the deed of transfer alone, including for a defect unknown at completion); ECLI:NL:RBGEL:2025:4531 (Gelderland, 11 June 2025, the clause assigned the piling damage claim and a later reassignment does not put that right); ECLI:NL:RBAMS:2022:2641 (Amsterdam, 18 May 2022, the transfer leaves the seller's liability intact and costs him his claim in indemnity proceedings); ECLI:NL:RBLIM:2017:10772 (Limburg, 8 November 2017, three conditions for passing with the property, including rights arising from non-performance).