Accountants advising in real estate transactions: be aware of penalties in mortgage deeds
The Court of Appeal of Arnhem-Leeuwarden ruled on 3 March 2020 that an accountant did not properly advise her client with respect to a sale of real estate (ECLI:NL:GHARL:2020:1875). In her research concerning the consequences of the sale, the accountant had failed to properly review the contracts between the seller and the financier of the real estate. The accountant had therefore acted unlawfully.
Facts and claim
The accountant was advising both the seller and the buyer on the takeover. In March 2014, the seller informed the accountant that the parties had reached an agreement. In respect of the sale of real estate, the seller, a partnership, asked the accountant to identify the consequences of the sale. Among other things, it wanted to know what the proceeds of the sale per partner, and the size of its assets, would be. In response, the accountant sent an overview of the consequences of the sale.
After the transfer of the real estate, the bank claimed an amount of over EUR 99,000 for early repayment of the mortgage. The accountant had not included this penalty interest in its calculation of the consequences of the sale.
The seller then wrote to the accountant stating that it had agreed to the sale of the real estate based on her advice. It claimed damages from the accountant to the amount of the penalty.
Court of first instance
The court of first instance rejected the claim, as the seller had not sufficiently substantiated that the accountant should have taken the penalty interest into account when calculating the consequences of the sale. According to the court, this did not fall within the scope of the assignment.
Court of appeal
The court of appeal ruled that the accountant had not acted with due care towards the seller. The court referred to the e-mail from the accountant to the seller accompanying the overview of the consequences of the acquisition, which showed (i) that the accountant referred to the consequences of the sale and the result per partner, and (ii) that the accountant knew that the real estate had been financed by a bank. The court of appeal continued that the accountant therefore should have at least investigated the contractual effects of the intended sale. Moreover, a penalty for early repayment is not unusual, and such a penalty usually involves substantial amounts. The accountant, as a financial expert, should have checked whether the financing documentation provided for such a penalty. By not looking into the contractual effects, the accountant acted unlawfully.
Nonetheless, the court of appeal dismissed the claim. For the allowance of damages, a causal relationship between the unlawful conduct and the losses is required. As the seller and the buyer had already made binding agreements with regard to the sale before the accountant advised the seller, this requirement was not met in this case.
