Article 2:9 of the Dutch Civil Code · joint and several · private assets
Directors' and officers' liability in a property structure
In a property structure a director is rarely held to account for the maintenance, but for financing, valuation and the moment at which he carried on paying.
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In brief
Article 2:9 of the Dutch Civil Code requires a director to perform his duties properly towards the company. On top of that, a creditor can hold him personally liable in tort under Article 6:162 DCC, for example where he entered into obligations while he knew or ought to have known that the company would not meet them. In a property BV that is almost always about financing and about the question of when things turned.
Property structures rarely consist of a single entity. A holding company, a subsidiary per property, sometimes a management BV and a limited partnership or fund with outside investors. If you manage several entities, you run the risk at every level, and on the bankruptcy of one subsidiary Article 2:248 DCC can reach the director of the parent as well. The joint and several liability means that each director can be held liable for the whole.
This policy covers the complaint against you as a driver. If the company is held liable as the owner of a defective building, that runs through Article 6:174 DCC and belongs with a liability insurance for property. The two covers do not overlap.
What does directors' and officers' liability cover in property?
The structure of the cover in three parts, with an overview per situation below.
The essentials
Damage to property and personal injury
Damage to other people's property and injury to other people.
Injury to third parties
Damage to other people's property
Also during visits to clients' sites
For staff
Employers' liability
Accidents at work and occupational illnesses.
Article 7:658 of the Dutch Civil Code
Hired-in staff as well
Not in traffic
Optional
Extensions
What is excluded as standard.
Care, custody and control
Work after completion
Environmental damage
What is covered
Situation
AVB
Another policy
Injury to a visitor or customer
Yes
No
Damage to a client's property
Sometimes
No
An accident at work involving an employee
Yes
No
Injury to staff in traffic
No
Yes
Damage to property in your care
No
Sometimes
Pure financial loss caused by a professional error
No
Yes
This overview is general in nature and is not personal advice. What is actually covered, including exclusions, limits and the excess, is set out in the policy conditions and the insurance card (verzekeringskaart) of the insurer; you receive both before you take out cover. Taking out cover without advice? Then read what execution only means for you.
Where things go wrong in practice
Four points that make the difference between a policy that pays out and one that does not.
The decision is judged as at the moment itself
A refinancing that works out badly because of a rise in interest rates is not improper management. The question is whether you acted carefully at the time: what information did you have, what valuation report was there, what scenario did you work through, and why did you choose as you did. Record that assessment in a list of decisions with the underlying documents. Reconstructing it afterwards almost never works in a dispute.
Carrying on with obligations after the tipping point
The sharpest personal risk lies in the phase in which the financing is under strain: rental income falls away, the bank revalues, and you nevertheless take on new obligations or pay selected creditors selectively. Anyone who carries on at that moment when it is clear that performance is not going to be possible can be held personally liable. Document what you based your expectations on and when you brought in outside help.
Accounts and filing per entity
The duty to keep accounts and the duty to file apply to each company separately. In structures with many subsidiaries a single entity gets forgotten, and it is precisely that omission that creates an evidential presumption of improper management in a bankruptcy. Keep a central calendar with the filing date for each entity and who signs for it, and keep the confirmation from the Chamber of Commerce.
What falls outside the policy
Intentional prejudice to creditors, fraud and deliberately providing incorrect information are excluded; where these are established, cover for that director falls away. Fines with a punitive character are not insurable. Circumstances you already knew about when taking out the policy fall outside the cover; Article 7:928 of the Dutch Civil Code requires you to report them in advance. A deficit in the company itself is not an insured loss either.
Care, custody and control is excluded as standard
Damage to property that you have in your care: borrowed, hired, being worked on or held in safekeeping: is not covered by the standard cover. For professions where this is the core of the work, a separate care, custody and control module with its own limit is essential.
Your AVB excludes damage caused with or by motor vehicles. It is precisely there that the Hoge Raad (the Dutch Supreme Court) recognised a separate liability based on the duty to act as a good employer: an employer must arrange proper insurance for employees who take part in traffic for work. A WEGAS insurance policy fills that gap.
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The legal entity limits the liability of shareholders, not that of directors. Where there is improper performance of duties or unlawful conduct under Article 6:162 of the Dutch Civil Code, recovery runs directly against your private assets, and the liability is in principle joint and several. Your fellow director may receive the claim and then pass part of it on to you, even where you did not take the decision.
I am resigning as a director. Does my risk then end?
No. Complaints about decisions from your period as a director can still arise years later, and the company's existing policy does not automatically cover you after your departure. Arrange run-off cover on resignation and record up to what date your responsibility ran. Buying it afterwards is not possible once the claim is on the table.
Does this policy also cover liability for my buildings?
No. Injury or property damage caused by a defect in a building runs through Article 6:174 of the Dutch Civil Code and affects the company as possessor, not you as a director. Separate liability insurance is needed for that. This policy comes into play when someone complains that you personally managed the company improperly.
When do I have to report a claim that is looming?
As soon as you become aware of a circumstance that may lead to a claim, such as a notice of liability from the insolvency administrator, a demand from a financier or a dispute with participants. Article 7:941 of the Dutch Civil Code requires notification as soon as that is reasonably possible. Waiting until the writ arrives costs you cover where the insurer's interests are prejudiced as a result.
Finass Verzekert is a trading name of Finass Advies B.V. We advise on and arrange non-life insurance on the basis of an objective analysis of several insurers, and receive commission for this from the insurer, which is included in the premium. You pay no separate advice fee. Before you take out cover, we establish your wishes and needs.
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