Preliminary relief proceedings on sale holiday parks Peter Gillis underlines importance of contractual diligence in takeovers

On 1 May 2025, the Court in preliminary relief proceedings held that the buyer of ten holiday parks has to perform his obligations under the purchase agreement, despite the fact that the Tax Administration had meanwhile levied a post-judgment attachment on several assets. This judgment underlines the importance of clear contractual arrangements in M&A transactions. 

The case concerned a large transaction in which the Oostappen Group – the property of businessman and reality star Peter Gillis – sold ten holiday parks with a total value of €185 million to a buyer. The transaction was partly given the shape of a transfer of assets and liabilities (eight parks) and partly of a transfer of shares (two parks). After the purchase agreement had been registered in the public registers on 21 February 2025, the Tax Administration suddenly attached several immovable properties belonging to the holiday parks on 24 February 2025. 

These attachments caused such uncertainty among the financiers that they wanted to withdraw from the deal. But there was a problem: the purchase agreement had already been signed. The buyer took the position that he could suspend his obligations under the agreement due to the attachments levied. He also relied on error and even claimed indemnification, without sufficient substantiation. 

The Oostappen Group, on the other hand, argued that the buyer was not entitled to a suspension and claimed performance of the agreement in preliminary relief proceedings, including payment of the purchase price and disclosure of the information required to the civil-law notary to be able to complete the transaction.

The Court awarded (most of) the claims of the Oostappen Group. It says in the adjudication that the buyer protected himself insufficiently against potential funding risks. For example, the purchase agreement expressly contained no subject to finance clause, nor a similar condition precedent or subsequent that might have protected the buyer from these situations. 

In addition, the buyer had agreed to an ‘as is, where is’ clause, which means that the buyer takes over all assets – including the immovable property – in the state they are in at the time of the purchase, without having to give any warranties or indemnities in return. Normally, such risks can still be identified in advance in a due diligence audit, but the parties chose (deliberately) not to perform such an audit, with all the consequences. 

According to the Court, the Oostappen Group has been transparent and cooperative throughout the process, also with regard to the attachments to be expected. For example, prior to the attachment the purchase agreement was immediately registered in the land registry, so that the buyer would enjoy property-law protection against the consequences of the attachment and the delivery could go ahead as planned (Section 3:89 DCC in conjunction with Section 3:97 DCC). On the other hand, the buyer had not complied with his obligations to provide information to the notary, by which he thwarted the completion of the transaction. The above caused the Court to decide that the buyer had to perform his obligations under the purchase agreement anyway. It is not yet clear whether the buyer will appeal against this decision. 

The most important lesson to be learned from this ruling is that it is very important to agree expressly on the legal and practical consequences of potential attachments in large transactions, and the potential loss of funding as a result thereof, especially if the risk of this happening was already known or foreseeable. In this case, the buyer could effectively have ruled out or limited such risks in the contract, for example by including conditions precedent or subsequent. Since the contract did not contain any such clauses, it is logical that the buyer (and his financiers) bear the full risk. 

By failing to include such clauses and not performing (or having performed) any due diligence audit, there was hardly any legal room for the buyer to evade the transaction. Since his financiers are now also withdrawing, the buyer will have to find another way to cough up the purchase price. If that fails, the consequences may be big for the buyer (it would not be the first enterprise to go bankrupt as a result of this). This case underlines the importance of diligence when preparing (purchase) agreements and of timely seeking legal advice when making (complex) acquisitions.

At Kennedy van der Laan we have extensive experience with complex (M&A and/or real property) transactions, financing and restructuring operations. 

This article was written by Bob Freijzer and Jan-Berend Möller. Should you have questions about this article or a specific issue, please feel free to contact them.