Legislative amendments to the housing market 2023

Which important legislative changes will take place on 1 January 2023 with regard to the real estate market? The NVM Legal Department lists the most important changes for the housing market and the market for commercial real estate.

Tax plan 2023

Transfer tax

General rate increase
It follows from the 2023 Tax Plan that the general transfer tax will be increased from 8% to 10.4% as of 1 January 2023. The reduced rate of 2% for acquiring homes that meet the main residence criterion remains unchanged. This also applies to the rate of 0% for the starters exemption. If you want to use the 8% rate this year, the transport must take place before January 1st 2023. If you acquire a home that does not serve as your main residence, this acquisition will be taxed at 10.4% as of 1 January 2023. This rate also applies to other real estate, unless the delivery is subject to VAT.

Indexation of maximum home value for the starters exemption
It also follows from the 2023 Tax Plan that the house value limit for the starters' exemption will be increased on January 1st 2023 from €400,000 to €440,000. Under certain conditions, homebuyers between the ages of 18 and 35 do not pay transfer tax for a home up to this limit. If you want to use the increase, the transport must take place after 31 December 2022. The moment of signing the purchase agreement is not important.

Gift tax

It also follows from the 2023 Tax Plan that the government will reduce the gift exemption for owner-occupied homes (also known as the "jubelton") to € 28,947 as of 1 January 2023 and to abolish it completely as of 1 January 2024.

Increased gift exemption
Based on the current regulations (2022), a person between the ages of 18 and 40 can once in his or her life, per donor, invoke an increased gift exemption of a maximum of € 106,671 to use for an owner-occupied home. This exemption applies for one calendar year and is an increase of the annual exemption. The exemption applies to gifts in the parent-child relationship as well as to gifts between third parties.

Donation of own home
In addition, the gift for the owner-occupied home can no longer be distributed from 2023 onwards. Donations made in 2022 are also limited to spread over a maximum of two years. In concrete terms, this means that in the case of a donation in 2022, the unused part of the exemption of € 106,671 can still be used for a donation in 2023, but no longer for a donation in 2024. It will, however, remain possible to use donations received in 2022 at to be kept separate for the benefit of the owner-occupied home and to be spent in 2024 at the latest (provided the other conditions are met).

One-time donation
Parents can also choose to give their child a one-off amount of € 27,231 (amount 2022) tax-free. The child can spend this amount freely. In 2023, the gift exemption for the owner-occupied home ("jubelton") will be equated with the gift amount of 2023 that can be freely spent (€ 28,947). Parents can donate this amount for their own home or for free spending. It is therefore not possible to use both donation counts.

Because these amounts are equalized in 2023, this distinction is no longer important in practice, and parents can therefore donate a total of € 28,947 to a child in 2023.

Vacant value ratio
It also follows from the 2023 Tax Plan that the government wants to update the percentages of the vacant value ratio table for rented homes in order to levy fairer tax on rented homes. The empty value ratio reduces the value of rented homes for box 3 of income tax and gift and inheritance tax, because rented homes are sometimes worth less than unrented homes.

The empty value ratio will be adjusted as of 1 January 2023. If the annual rent exceeds 5 percent of the WOZ value, the percentage of the vacant value ratio will be increased to 100 percent from 2023. In addition, the application of the vacant value ratio is excluded for temporary leases and the highest percentage (100 percent) applies to rentals to affiliated parties (such as family), with the result that in these situations the vacant value ratio de facto no longer has any effect.

Entry into force Tax Plan 2023

The 2023 Tax Plan (and with it the changes to the transfer tax, the gift exemption and the empty value ratio described above) was adopted by the House of Representatives on 10 November 2022. If the Senate also adopts the Tax Plan (expected in mid-December), the above changes will take effect on 1 January 2023.

Purchase protection evaluation

On January 1st, 2022, the 'Purchase Protection Act' entered into force. Although no changes have been made to the regulations in this regard in 2022 (and not as of 2023), we will consider the developments surrounding this law in 2022 below.

The 'Protection Protection Act' was de facto an amendment to the Housing Act 2014, to which a new chapter was added. Pursuant to the new Chapter 7, municipalities were given the authority to (temporarily) designate areas in their housing regulations within which it was prohibited to 'give another person use' living space without a permit. The designated homes must be in the cheap and medium-priced segment.

The aim is to give first-time buyers and middle-income earners a better chance of an affordable owner-occupied home or to limit the extra pressure on the quality of life resulting from the purchase of homes for rent (buy-to-let). Municipalities may therefore only use this power if they deem it necessary and appropriate to combat the scarcity of cheap and medium-priced owner-occupied homes or to maintain the quality of life in the residential environment.

Model Housing Regulation VNG
Shortly after the entry into force of the Purchase Protection Act, the Association of Dutch Municipalities (VNG) included a purchase protection scheme in the Model Housing Regulations, on which municipalities can base their own housing regulations. Several municipalities, especially those that include the larger cities, have already actually used the powers that the new law offers them.

For example, the municipality of Rotterdam has introduced purchase protection in 16 neighborhoods for homes with a WOZ value of up to €355,000 and the municipality of Amsterdam has introduced purchase protection for all homes in the municipality with a WOZ value of up to €512,000. The purchase protection has been introduced in at least 12 municipalities in the course of 2022 and the administrative law process for its implementation is ongoing in a number of municipalities.

Although little is known about the possible (positive) effects of introducing purchase protection, many municipalities are in any case making use of it. In July 2022, the NVM noted that, although the number of rental transactions in the second quarter of 2022 had increased by about 5% compared to the first quarter of 2022, rental transactions in the four major cities declined. The most likely cause of this was partly attributed to the purchase protection. It should become clear in 2023 how the (introduction of) purchase protection will develop further.

NHG limit

From 1 January 2023, the NHG cost limit for homes without energy-saving facilities will increase from € 355,000 to € 405,000. For homes where energy-saving measures are taken, the cost limit is 6% higher, namely € 429,300, instead of € 376,300 in 2022. The NHG premium (also known as the surety commission) will be equal in 2023 to the percentage determined in 2022 : 0.6% on the amount of the mortgage.

Binding offer
The date of the binding offer is leading for NHG. If the lender's binding offer is issued after 1 January of a certain year, the 'Terms and Standards' (and therefore also the cost limit and the bail commission) of the year of the binding offer will apply.

This may mean that a new cost limit applies to a home that was purchased before 1 January, but where the binding offer was issued after 1 January.

Purchase price excluding movable property
The amount excluding movable property applies to the purchase price. If the purchase price is € 410,000, of which € 5,000 is movable property, then the NHG assumes the purchase price of € 405,000 (excluding movable property). If the lender considers the amount paid for the movable property to be realistic, NHG is possible. If not, the cost limit will be exceeded and NHG will not be possible.

Transfer also below the NHG limit
The NHG cost limit applies to both purchases and transfers. Transferring from a loan without NHG to a mortgage with NHG is not possible if the home value is above the cost limit.

NHG premium in 2023 remains the same; 0.6%
For a mortgage with NHG, a buyer pays a one-off NHG premium, the so-called surety commission. The consumer pays this surety commission to NHG via the lender as soon as the mortgage is taken out. The bail commission for a mortgage with a National Mortgage Guarantee (‘NHG premium’) will remain the same in 2023 and is 0.6% of the amount of the mortgage.

Disconnect NHG and affordability limit
The cabinet wants to realize 900,000 homes by 2030, two thirds of which are 'affordable'. At the moment, the National Mortgage Guarantee (NHG) limit applies as the extreme limit for what constitutes an affordable owner-occupied home. Due to the sharp increase in the NHG limit, homes with that price are affordable for fewer people, because incomes have risen relatively less than the NHG limit in the past year. That is why the cabinet is going to separate the limit for what constitutes affordable owner-occupied homes from the National Mortgage Guarantee (NHG) limit. For the regional housing deals that will be determined at the end of this year and the beginning of next year, the current NHG limit of € 355,000 will be used as the affordability limit, in accordance with the Residential Building programme. This will therefore not change due to an increase in the cost limit to € 405,000.

Mortgage interest deduction

The mortgage interest deduction will fall from 40% to 37.05% in 2023. The limitation only affects homeowners who are in the highest tax bracket. Since 2017, the maximum tax rate at which mortgage interest can be deducted has been falling. The percentage is gradually reduced from 52% to 37.05%. Previously, this rate fell by 0.5% per year. From 2020 it will be phased out at an accelerated rate of 3% per year. From 2023, the rate of 37.05% will then be reached.

Hillen deduction drops to 83.34% in 2023

The deductible item due to little or no home acquisition debt (Hill deduction) decreases by 3⅓% per year. In 2023, the Hillen deduction will decrease from 86.67% to 83.34%.

The Hillen Act entitles you to an additional deductible item if your notional rental value exceeds the deductible costs of the owner-occupied home. In 2018, the cabinet decided to abolish the Hillen deduction in 30 years, in steps of 3⅓% per year. From 1 January 2048, the deduction will lapse completely. 

Partner's income counts fully in 2023

In 2022, when determining the financing burden percentage for two-income households, the income of the partner earning less was included for 90%. On 13 July 2022, the Minister of Finance submitted the '2023 Mortgage Loan Amendment Regulations' for internet consultation.

This scheme changes the 'Temporary mortgage loan scheme', as a result of which the financing burden percentage in 2023 will be determined on the basis of the joint qualifying income. The internet consultation ended on August 29, 2023 and the amendment scheme was announced on November 3, 2022. This means that the change will come into effect on 1 January 2023.

WOZ value

Last year we reported that the WOZ value was expected to increase by 8.5-9% in 2022. On 1 January 2022, the average WOZ value of a home was € 315,000, which means that this average value was 8.6% higher than a year earlier. It is expected that this increase will continue in 2023 and the average WOZ value will rise to almost € 340,000.

Notional rental value decreases in 2023

In 2023, the percentage for calculating the notional rental value will decrease from 0.45% to 0.35% for homes with a WOZ value between €75,000 and €1,200,000. The notional rental value from € 1,200,000 will remain the same in 2023 (2.35%).

Energy

Energy label C is mandatory for office space from 1 January 2023
As of January 1, 2023, every office building (with exceptions) must have at least an energy label C. This means an energy index of 1.3 or better. The energy label C obligation applies to an office building where the usable area of office functions covers 50% or more of the total area and the area of office functions (and ancillary functions) is larger than 100 m2 (usable area according to NEN 2580). It can therefore be a separate office building, but also part of a larger building. For the exceptions, see the link below: https://www.rvo.nl/onderwerpen/wetten-en-regels-gebouwen/energielabel-c-kantoren/veelgestelde-vragen-energielabel-c. 

Consequences for letting office space
What consequences does this have for tenants and landlords of office space? The NVM previously advised to call in an expert party to find out which energy-saving measures can be taken to comply with the C-obligation. NVM business members can use NVM partner SGS Search for this. See the link below: Energy label C for office space as of 1 January 2023 (nvm.nl).

Responsibility for (rental) rental and enforcement
In the aforementioned article, the Legal Service also addressed the question of who is responsible for taking energy-saving measures when renting out an office building and issues related to their enforcement.

Energy tax

The price of a cubic meter of gas and kilowatt hour of electricity consists of 3 parts: the market price, VAT and energy tax. The temporary reduction from 21% to 9% VAT will expire on 1 January 2023, and will therefore be 21% again from that moment on. In 2023, the energy tax will be approximately €0.59 per m3 of gas and €0.15 per kWh of electricity (amounts including 21% VAT). At the same time, you will receive a fixed amount of energy tax back, namely € 596.85 (amount in 2023, compared to € 824.77 in 2022). In this way, the government wants to encourage people to use less energy.

On Prinsjesdag 2022, the cabinet announced that on 1 January 2023 the energy tax on gas will decrease by €0.631 per m³³ and on electricity by €0.706 per kWh. However, this proposed energy tax reduction will not take place, but will be replaced by the temporary price cap described below.

Energy cost compensation

Energy compensation for Dutch households
On Prinsjesdag, the government announced the long-awaited measures against the sharp rise in energy costs. To compensate for this increase, the government has taken various measures. The most important measure: a price cap for energy costs.

From 1 January 2023, households in the Netherlands will pay €0.40 per kWh of electricity and €1.45 per m3 gas (including energy tax and VAT) up to the 'basic consumption'. For electricity this basic consumption is 2,900 kWh per year and for gas this basic consumption is 1,200 m3 per year. Households pay the currently applicable rates for use above this basic consumption. If these rates are lower than these maximum prices, this lower rate will be paid for the term of the energy contract.

Please note: The energy ceiling is not yet final. It is still highly questionable whether this will be completed before January 1. For example, Nieuwsuur reported on 4 November that the introduction of the temporary measure was in doubt.

Discount for small consumption connection

In anticipation of these measures from 1 January 2023, everyone who has a small-scale consumption connection for electricity on the 1st day of November and December will receive a € 190 discount. The building with the connection must be intended for living or working. For example, a home, office or cafe. The discount therefore does not apply to, for example, a garage box with a separate connection and its own energy contract. If you have a separate meter behind your meter for an electric car, for example, you will only receive the amount for your main connection.

How households receive this discount depends on the energy supplier. This can be done by:

• € 190 to be transferred
• € 190 to be deducted from the advance or final bill for electricity;
• transfer part of the € 190 to you and collect the other part from the advance or final bill for electricity;
• € 190 to be withdrawn from an outstanding account or payment arrangement ;
• € 190 to be transferred after the contract ends.

Energy compensation for SMEs
The government is also introducing a scheme for SMEs that are faced with sharp cost increases. According to Minister Micky Adriaansens (Economic Affairs and Climate), the Energy Cost Allowance Scheme (TEK) should provide targeted support to SMEs that cannot escape high energy consumption.

Conditions TEK

SMEs that spend at least 7 percent of their turnover on energy costs will be eligible for the TEK scheme from November 2022. Furthermore, the following conditions apply:

The company meets the European SME definition:

• The company has fewer than 250 employees;
• The annual turnover of the company is a maximum of € 50 million;
• The annual balance sheet of the company is a maximum of € 43 million.
• The company is registered in the Chamber of Commerce Trade Register.

Through this scheme, companies will receive a refund of part of the amount they have started paying more for energy. The amount to which the company is entitled is calculated on the basis of a threshold price of €1.19 per m3 of gas and €0.35 per kWh of electricity. If companies pay more than these amounts according to their energy contract, they will be refunded 50%, up to a maximum amount of € 160,000.

Although the TEK scheme can be applied for over the period from November 1, 2022 to December 2023, the application can probably only be applied for in the second quarter of 2023 (with retroactive effect). The TEK scheme must comply with European state aid rules and be approved by the European Commission. This procedure is currently underway.

When the TEK scheme has been approved by the European Commission, entrepreneurs who meet the conditions on this page can submit an application. For the bridging possibilities until the opening of the TEK, we refer you to Kamerbrief van minister Adriaansens van 14 oktober 2022.

Investment subsidy for sustainable energy and energy saving (ISDE)

With the Investment subsidy for sustainable energy and energy saving (ISDE), homeowners can apply for a subsidy for a solar boiler, a (hybrid) heat pump, insulation measures and connection to a heat network. Business users are eligible for a subsidy for a solar boiler, a heat pump, connection to a heating network and for small-scale wind turbines and solar panels. In all likelihood, more than € 290 million in subsidy will be available in 2022. The ISDE subsidy will continue until 2030. More information about the ISDE? See the link below: https://www.rvo.nl/subsidie-en-financieringswijzer/isde

For more energy-saving measures, see the link below: https://www.rijksoverheid.nl/onderwerpen/duurzame-energie/rijksoverheid-stimuleert-energiebesparing

Abolition of VAT when supplying and installing solar panels

A VAT rate of 21% currently applies to the delivery and installation of solar panels on or near a (holiday) home. The House of Representatives has passed a bill to reduce this VAT rate to 0% as of 1 January 2023.

If the Senate also adopts the bill, the VAT for the supply and installation of solar panels on or near a (holiday) home will disappear completely from 1 January 2023. A (holiday) home also includes a garage or shed attached to a home, a conservatory or an extension or extension. The 0% rate also applies to work that is strongly related to the solar panels to be installed, such as laying cables, mounting material, optimizers and inverters. Adjustments to the meter cupboard in connection with the purchase of solar panels also fall under the 0% rate.

If the Senate also adopts the bill, the VAT for the supply and installation of solar panels on or near a (holiday) home will disappear completely from 1 January 2023. A (holiday) home also includes a garage or shed attached to a home, a conservatory or an extension or extension. The 0% rate also applies to work that is strongly related to the solar panels to be installed, such as laying cables, mounting material, optimizers and inverters. Adjustments to the meter cupboard in connection with the purchase of solar panels also fall under the 0% rate.

Invoice date is decisive
If the solar panels are installed at an earlier time (than January 1, 2023), the old rate (21%) will apply. It is possible that (part of) the payment for the solar panels to be installed has been made in 2022, with delivery only taking place in 2023. It is also possible that a quote has already been sent this year for installation in 2023. In all cases, the invoice date determines the VAT rate. Even when it comes to an invoice for a down payment. So if the invoice date is in 2022, the VAT rate is 21%. And if the invoice date is in 2023, then the VAT rate is 0%.

The invoice date, and therefore the VAT rate stated on the invoice, is subject to a condition. If no down payment has been made, the invoice date must be no later than the 15th day of the month after the delivery and installation of the solar panels. In addition, if a deposit is to be paid, there must first be an invoice for the deposit. This invoice must at least state the amount of the down payment and the VAT.

See the link below for more information: Wetsvoorstel: 0% btw voor zonnepanelen op woningen vanaf 1 januari 2023 (belastingdienst.nl).

Tenancy law changes

Maximum annual rent increase in the private sector

On 6 October 2022, Minister de Jonge (Public Housing and Spatial Planning) submitted a bill whereby the annual rent increase for homes in the liberalized sector in 2023 will be maximized to the level of wage development + 1%.

The minister believes it is necessary to intervene to ensure moderate rent increases and tenant protection. The bill is an emergency intervention to the current amendment of the law as of 1 May 2021, whereby the maximum rent increase in the free sector is capped at inflation +1% for a period of three years. As a result of the high inflation since November 2021, application of the current scheme could result in rents in the private sector rising sharply in 2023. From December 1, 2021 to September 1, 2022, inflation was 8.9% against 2.3% from December 1, 2020 to December 1, 2021.

The bill consists of an amendment to Article 10 paragraph 3 of the Housing Rents Implementation Act and should come into force on 1 January 2023. If wage development is lower than inflation, the maximum permitted annual rent increase under the new bill will be equal to wage development + 1%. If wages rise more than inflation in the future, the new system ensures that the rent increase does not consist of (higher) wage development (+1%), but of (lower) inflation (+1%). After all, on the basis of the bill, the maximum rent increase consists of the lowest increase of (Article 10 paragraph 3 sub a Residential Rents Implementation Act) inflation or or (Article 10 paragraph 3 sub b Residential Rents Implementation Act) wage development.

The new system will apply until 1 May 2024. After 2023, the amendment to the law will be evaluated. A new bill is necessary for any extension after 1 May 2024.

Criticism of earlier proposal
Earlier, the minister had proposed that the maximum rent increase percentage be set by ministerial regulation. However, the Council of State was critical when reviewing this proposal, because the basis of the maximum rent increase remained unclear. By leaving the determination of the maximum rent increase to the Minister, there would be no guarantee to ensure that a balanced weighing of interests takes place and that the amount of the maximum rent increase meets the requirements of necessity and proportionality. As a result of this criticism, the current bill has been chosen.

After the bill was submitted, the committee meeting on this matter was held in early November. It is unknown when the bill will be discussed in the House of Representatives. It is unclear whether this bill can actually go ahead as of January 1, 2023. We will inform you about this as soon as more information becomes available. If this bill does not pass, the maximum rent increase in the private sector will remain linked to the inflation figures + 1%.

Rent increase social sector
Until July 1, 2022, the maximum rent increase in the social sector was frozen (0%). From 1 July 2022 to 1 July 2023, the maximum rent increase has been set at 2.3% for a rent from € 300 and a maximum of € 25 for a rent up to € 300.

Abolition of landlord levy
The landlord levy is a levy for landlords who own at least 50 rental properties and has been controversial for some time. Before 2021, the level of the landlord levy was still 0.526% and this has already been scaled down to 0.332% in 2022. The coalition agreement showed that the government will abolish the landlord levy by 2023 . After questions about this, the Minister of Finance has announced that the landlord levy will be abolished as of 1 January 2023 in one go, and therefore not gradually.

Cabinet plans to promote the so-called 'middle rent'
As a result of the tightness in the housing market and the limited opportunities for first-time buyers and young people, Minister De Jonge wants to further protect the middle segment of the rental market. In addition to the introduction of purchase protection (self-occupancy obligation) on 1 January 2022, the further limitation of the maximum annual rent increase (the link to wage developments, see 'rent increase in the private sector') and the plans to add a substantial number of new 'mid-rental' homes. building (40% of the target of 900,000 up to and including 2030), the government wants to apply the so-called housing valuation system (hereinafter: WWS) to homes in the 'middle rent'. This change should improve the affordability of rents for middle-income households.

The plans
At the moment, all homes with a rent below the liberalization limit of € 763.47 (2022) fall within the protected social rental sector. The limit of rent protection will be 187 points based on the WWS. The WWS determines the maximum rent based on the quality of a living space. For this, a point system is used that values various aspects of the living space, such as the surface area and the energy label of the house. The WWS is now being expanded from 141 points to approximately 187 points. This means that homes for which more than € 1,000 are currently being asked for, while they have less than 187 points based on the quality of the rental home, will have to be adjusted downwards in the rent for a new contract. Due to the regulation, the cabinet expects that in the long term more than 90% of rental homes (social rental and mid-market rental) will be rented out under a new rental contract under €1,000.

Criticism
The introduction of these measures could put pressure on the (rental) return on investment properties. This can cause investors to sell their properties, after which these homes are bought by private individuals who will occupy these homes themselves. As a result, the number of mid-rental homes will decrease and the law will overshoot its target. It is also expected that homes that currently fall into the middle segment, with relatively minor adjustments or renovations, will fall outside the future limit of 187 points. This also means that the number of mid-rental homes is declining. Another consequence may be that investors only develop homes that fall into the private sector and stop building mid-rental homes because the return on investment in such homes is lower than expected. This is only reinforced by the expectation that many insurers and pension funds will withdraw as investors in this property, again because of the expected lower returns. In this scenario, too, the number of mid-market rental homes will decrease.

Alternatives
An alternative solution to the shortage of housing in the middle segment is to grant a subsidy to landlords. An experiment is currently underway in Amsterdam in which project developers receive a 10% discount on the price of land if they transform existing buildings into mid-rental homes or build mid-rental homes. In this way, Amsterdam hopes to promote the construction of the number of mid-market rental homes. However, whether granting subsidies in this way is sustainable in the long term and on a large scale is debatable.

It is expected that Minister de Jonge will present an overall picture of this regulation in the short term, so that the 'Mid Rent Regulation Act' can go into consultation at the beginning of 2023.

See the link below for the coverage of this from the central government: Vanaf 2024 meeste huurwoningen onder de €1000 | Nieuwsbericht | Rijksoverheid.nl.

Introduction of new Environmental Act

In the overview of legislative changes of the NVM of 2022, we informed you that the new Environment and Planning Act will not be introduced on 1 January 2022, but that this would take place on 1 July 2022. However, the introduction of the new Environment Act was postponed again in February 2022 to January 1, 2023. However, this implementation date also turned out to be too early; on October 14, 2022, Minister De Jonge announced that the introduction of the Environment and Planning Act would be postponed to July 1, 2023. See also previous reporting from the NVM.

In short, the changes in the Environment and Planning Act mean that the Environment and Planning Act bundles and modernizes laws for the physical living environment. This includes legislation and regulations on construction, the environment, water, spatial planning and nature. For example, 26 laws will be fully or partially incorporated into the Environment and Planning Act. In addition, a new digital system will be set up (Digitaal System Environment Act), which system www.ruimtelijkeplanning.nl replaces. This creates a single digital counter for applying for permits and consulting the applicable rules per location. The permit system for building will also be changed in the Environment and Planning Act. A split is made in the 'spatial part' and the 'technical part'. In other words, two permits. The zoning plan, which is often consulted by real estate agents, will become the environmental plan. The NVM will provide you with further information in the run-up to the introduction of the new Environment and Planning Act.

See the link below for more information: Invoering van de Omgevingswet naar 1 juli 2023 | Nieuwsbericht | Rijksoverheid.nl.

Source: https://www.nvm.nl/ledennieuws_november_2022/wetswijzigingen-2023/