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The Dutch urban ground lease: A valuable tool for land policy?

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Abstract

Once heralded by both liberals and socialists as a tool for Dutch municipal governments to prevent land speculation and to implement spatial policies, a century later the Dutch ground lease (erfpacht) is now despised by many. The ground lease was the subject of strong debate in the recent past and is likely to remain so. It has been argued that lessees should have the right to become owner of the land, and this ‘right to buy’ has indeed been implemented in the land policies of several municipalities. The Dutch urban ground lease seems to be under serious pressure. Is it outdated or is it still a valuable tool for land policy? Before we answer this question, we firstly will provide an historical overview of Dutch ground lease. Secondly, the different types of ground lease will be elaborated. Thirdly, the focus will be on the urban ground lease used by Dutch municipalities and the developments in the use of this instrument. Fourthly, the recent policy changes will be dealt with, followed by an assessment.

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... As a result of this problem, the public leasehold system "as originally conceived in Israel and Canberra, has reached its end" (Benchetrit and Czamanski, 2004, p. 46). It has also generated fierce debates elsewhere (Tyvimaa et al., 2015;Ploeger and Bounjouh, 2017), such that many ground-rent adjustments end up in court (Mandell, 2002). Nevertheless, interest in public ground-lease models is undergoing a revival as a way of providing affordable housing that allows for a separation between the affordable price paid by the lessee and an enduring claim on full future land values by the public owner (Bourguignon, 2013;Löhr, 2017;Shamsuddin and Vale, 2017). ...
... In this section, the six principles elaborated above are used to analyse alternative options based on the case study of Amsterdam. Since 1896, Amsterdam has had a well-established public ground-lease system (Van Veen, 2005;Gautier and Van Vuuren, 2017;Ploeger and Bounjouh, 2017). As a result, a large part of the city has been developed through ground leases. ...
... The higher leases were perceived as unfair, and the municipality was portrayed as a greedy landlord, stripping inhabitants of the value that they had accumulated in their homes. One active non-governmental organisation uses the legal-expense insurance of its members to sue the city up to the highest courts for a wide variety of disputes (Ploeger and Bounjouh, 2017). In most cases, the Supreme Court of The Netherlands allows the cases to be discussed as part of cassation proceedings, meaning that there are sufficient matters of legal substance. ...
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... The municipal revenues linked to land leases may decrease significantly during the real estate market downturn and economic crisis. On the other hand, evidence suggests that ground leasing may help finance development projects, especially during economic downturns (Ploeger & Bounjouh, 2017). ...
... Public ground leases may help to achieve multiple non-financial goals. Scholars point out that a ground lease is an essential strategic policy instrument allowing municipalities to control land use effectively parallel to spatial planning (Ploeger & Bounjouh, 2017). In addition, economists argue that municipal ground leases may be used to promote affordable and sustainable housing (Korthals Altes & Tambach, 2008;Löhr, 2017). ...
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... The announced shift to an organic approach in which a central steering role of the local authority will be replaced by 'creating opportunities for incremental urban development that build upon a series of civic initiatives' (Rauws, 2016, 351), to avoid the risk of active involvement, has not yet been enacted due to the pressure on Amsterdam property markets being answered by a political decision to be actively involved in providing land for development. This active involvement includes that the local authority acquires property rights, services the land and disposes the land based on ground leases (Ploeger and Bounjouh, 2017) to developers, end users and housing associations. ...
... Here the land is disposed in a ground lease system (Ploeger and Bounjouh, 2017) in which one of the conditions is that the land must be used according to its designated use. Tenants have shifted from choosing a payment of the full land value in 89% of the cases in 2010, towards a preference of annual rent payments in 83% of the cases in 2017, which has resulted in concerns regarding the City's debt levels. ...
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The development of existing urban areas is needed to prevent urban sprawl. Several factors, including land assembly holdouts and the option value of land, contribute to landowners’ lack of initiative to develop designated sites. Urban governance measures, however, may provide the necessary solutions. By implementing policies that promote inner-city development, i.e. by providing serviced plots for building development, urban expansion can be controlled to ensure that it does not result in a higher scarcity of land. This paper presents the case of Amsterdam, where policies ensure the timely securing of land appropriate for building and the use of option contracts to promote development. The results are discussed and their relevance to other contexts demonstrated. http://resolver.tudelft.nl/uuid:18cb589f-3c3f-4003-a773-22ae187deab5
... In the urban and peri-urban context, it is very common nowadays that municipalities are the largest landowners. Seeing strong pressure from the need of housing and re-development, emerging studies argue that leasing is better than privatizing properties for municipalities to manage and plan urban land uses because of the possibilities to 1) capture the surplus value upon the change of land use types and obtain funds needed for investment through charging rent (Ploeger and Bounjouh, 2017); 2) share risk/returns with the public, which is especially valuable for the landowners during the economic downturn (Gerber et al., 2017); and 3) to achieve social and ecological objectives while maintaining economic profitability (Löhr, 2017). These perspectives are insightful for understanding peri-urban land tenure as well despite little peri-urban research having drawn on them so far. ...
... The Swedish double-tiered lease system provides an example of how agricultural production can be leveraged by lease design, where the two types of lease provide different levels of security and rights and involve different levels of rental costs. We agree with several recent urban studies (Gerber et al., 2017;Löhr, 2017;Ploeger and Bounjouh, 2017) that long-term leases granted on municipal land can be strategically used as a policy instrument. Although landowning municipalities need to share certain rights with leaseholders through long-term leases, the latter also contribute to active use of land resources and even invest in their maintenance. ...
... Research on perpetual usufruct or long-term leaseholds addresses many issues related to this right (Tong & Bounjouh, 2017 * jkuryj@uwm.edu.pl, * anna.klimach@uwm.edu.pl ...
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... Decisive is the right of the user. Long-term leasing of land under Dutch law is an example of such a situation (Ploeger and Bounjouh, 2017), but economic ownership can also be based on a contract (e.g. a contract of sale, providing the buyer all the rights to use the property before the transfer of the legal ownership itself). However, the success of the specific legal relationship depends on whether the economic owner can invoke hihe/sher rights against third parties, such as a new legal owner of the property, or the mortgagee. ...
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... Public real estate management continues to be a relevant issue in the context of sustainability, partly because of the role of real estate resources in different management systems [1][2][3]. In many countries, municipal governments often play a key role in the development of urban areas [4,5]. It is clear that government intervention is crucial in the modern urban economy [6,7]. ...
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In this paper, we present a generalization of Mandell's model for the estimation of ground lease pricing. We adjust the model so that it fits, in particular, the Polish legal regulations and situation of the Polish real estate market. The model involves two aspects. The first is the perpetual usufruct, a form of owning the ground similar to a long-term lease, but having some specific features. The second is allowing lease rent adjustments after some fixed period, meaning we consider the situation where the payments are fixed during certain periods as defined in the contract. The proposed model determines the minimum lease amount for the owner, which is the rate at which it is beneficial to lease the property, and the maximum for the lessee, which is the amount above which the lease is unprofitable for the leaseholder or perpetual usufruct.
... In most jurisdictions, a 2D parcel is the main entity of property situations, registration. To be able to establish the legal situation of multi-level property rights via the 2D parcel, limited real rights are established on the land parcel, such as easement, right of superficies (opstalrecht), and right of ground lease (erfpacht) [3,4]. ...
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This paper, on the use of apartment rights for management of areas with mixed residential and commercial use in The Netherlands, presents the first results of a research project that started in 2008. Our conclusions so far are based on literature research and a limited number of interviews. The redevelopment of industrial areas involves two tasks: Development and management. On the one hand, apartment rights offer a very flexible system that may be adapted to suit various circumstances. On the other hand, it proved to be an inflexible instrument: Once the deed of division has been registered, it is rather difficult to change the complex and the charter determining the rights and duties of the apartment owners. We stress that lawyers should be involved in mixed use and multiple use of space projects from an early stage, in order to reach an optimal solution in the combination of both the physical and legal design and construction of the project. This is the concept of “juritecture.”
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In the Netherlands, most building takes place on land supplied by the municipality, and this has been the case for the last 40 years or so. This is an almost unique situation in the Western world, and it is even more remarkable considering that the Netherlands has a thriving and dominant market economy. Moreover, for very many years most of the private parties involved in building development - owners of development land, property developers, building contractors - were happy with this situation and wanted it to continue (but increasingly they are challenging it: recent changes are described later). Most non-Ditch find this very puzzling: the aim of this article is to describe Dutch land policy and to explain the puzzle. First, the land policy is explained in the terms which the Dutch are accustomed to use for it. Then that policy is analyzed using conventional land-price theory. Finally, some very recent changes are described and explained using the analysis.
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In the international literature and discussions on land management, Dutch land policy is often presented as a special case, sometimes even as a role model for other countries. However, in recent years this policy has come under pressure as a consequence of institutional changes in the housing market, the social housing sector, spatial policy and European competition rules. This paper intends to unravel these changes and their effect on Dutch land policy. It also reflects upon the implications of land policy changes for the effectiveness of spatial policy. Copyright (c) 2010 by the Royal Dutch Geographical Society KNAG.
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Promoting mixed-use development is part of policies aimed at enhancing urban quality. Until recently, however, industry and housing have rarely been found together in the same development as there is a long tradition of keeping these functions separate. As part of a compact-city policy, Dutch local authorities are in the process of introducing housing on single-function industrial estates developed after World War II. Local governments are looking for strategies and instruments that will help them to redevelop these sites towards mixed-use areas combining housing and industry. This paper analyses case studies on the Binckhorst and Plaspoelpolder sites in and around The Hague and the Buiksloterham site in Amsterdam in relation to the following themes: attractiveness of the site as a location for the introduction of housing, the environmental loading caused by combining industry and housing, and municipal strategies for redevelopment of the industrial estates. It was found that traditional amenities such as waterfronts can provide ample potential for housing development; that while there may be plenty of room for housing, much of it will be subject to unacceptable environmental hazards; that a cooperative enforcement style is used to mutually adapt the local interpretation of environmental standards to the interests of the mixed-use areas; and that in all cases, local government became strongly involved in the property market in order to internalize the external effects of investments in the area.
Een eeuw erfpacht in Amsterdam
  • Amsterdam City Of
Ervaringen met erfpacht report for the Ministry of the Interior and Kingdom Relations
  • Compaenen
The use of public ground lease in European cities. Amsterdam: Development Corporation Amsterdam
  • Amsterdam City Of
Practical approaches to the numerus clausus of land rights
  • Mostert