A right of retention can give you, as an entrepreneur, the right to keep a customer’s property in your possession until a related claim has been paid. This requires, among other things, a sufficiently related claim that is due and payable, and actual control over the property. You may not take goods away from the customer yourself in order to create a right of retention after the fact.
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Written by Onur Arslan, attorney at Arslan Advocaten. Registered in the specialisation register of the Netherlands Bar for employment law and personal injury. Last updated: 17 September 2026.
The remedy arises, for example, with repairs, maintenance, storage and construction projects. A garage keeps a repaired car, a repairer has a machine in the workshop or a contractor relies on his position on a building site. The requirements and consequences differ from case to case, especially if a third party is the owner or bankruptcy follows.
A right of retention is powerful because it can temporarily prevent the property from being handed over. It is not general permission to use or sell a customer’s property, or to hold on to it as a punishment. Assess the legal basis before you refuse to hand it over.
What is a right of retention
Article 3:290 of the Dutch Civil Code (BW) defines the right of retention as a power to suspend the surrender of property until a claim has been paid, in the cases where the law grants that power. It is therefore linked to the rules on suspension, but has a character of its own because of the property involved and the position vis-à-vis third parties.
In property law, a thing (zaak) is a tangible object capable of human control. A car, a machine or a consignment of goods may fall within that definition. Digital data or an online account are not necessarily a thing in the same way. A payment dispute therefore does not automatically give a right of retention over all of a client’s files.
A right of retention also differs from retention of title. With retention of title, you remain, under certain conditions, the owner of goods delivered. With a right of retention, the property may already belong to the customer or a third party, while you are entitled to refuse to hand it over for the time being. For the former topic, read retention of title in the event of non-payment.
What claim must you have
Start with the question of why the customer has to pay. Is there a valid instruction, has the work been carried out and is the fee due? Keep the quotation, order confirmation, job sheet, invoice and payment arrangements. Without a substantiated claim, an essential element of your position is missing.
Next, there must be a sufficient connection between the claim and the obligation to hand over the property. With the repair costs of the very machine that was repaired, that connection is often obvious. An old, unrelated claim against the same person does not automatically give you the right to hold on to another item.
A disputed claim can also be included in the assessment, but a dispute increases the risk. If it later turns out that the fee was not owed, withholding the property may have been wrongful. So check complaints about the work on their merits and keep undisputed and disputed items separate.
Actual control over the property
You must actually have the property in your possession in a way that makes handing it over necessary. That requires more than a letter stating that you are exercising a right of retention. With movable property, its presence in your locked workshop may be relevant. On a building site, access, fencing and the actual situation are often the subject of dispute.
A sign on a site is not in itself a magic solution. Examine who actually has access, who uses the property and whether the situation is sufficiently apparent to third parties. A contractor who has already completed and left a project cannot simply return later and lock the gate to restore his position.
Record the situation with photos, access arrangements, key management and an inventory. Do this carefully and without suggesting new rights. A marking applied after the fact does not prove that you already had the required control earlier.
The property must have come into your possession lawfully
A right of retention is not a substitute for attachment. You may not take a machine from the customer’s premises without permission because an invoice is outstanding. Using a spare key to retrieve a car that has already been handed over can also cause serious legal problems.
If you do not have the property in your possession, another route must be examined, such as a claim for payment or prejudgment attachment. Attachment requires court proceedings and formal execution by a bailiff (deurwaarder).
Nor should you assume that every means of access gives a right to exclude others. A key or administrator account may have been provided solely for carrying out the assignment. The power to use that access in a payment dispute must be assessed separately.
What if the property belongs to a third party
A customer may bring in a leased car, a hired machine or a borrowed item for repair. You are then dealing with someone who may not be the owner. Whether you can invoke a right of retention against the owner is determined in part by Article 3:291 of the Dutch Civil Code.
The law distinguishes, among other things, between rights acquired later and rights acquired earlier. Where a third party has an earlier right, it matters whether the agreement was entered into with authority in respect of the property or whether you had no reason to doubt that authority. The exact application requires knowledge of the facts and the underlying relationship.
So ask about ownership, leasing and authority in advance when valuable property is involved. Keep information showing why you were entitled to regard the client as authorised. An invoice in the name of the user does not in itself prove that the owner must respect your right of retention.
How far may your measure go
The exercise of a right of retention must remain within the applicable statutory and contractual rules. The relationship between your claim and the consequences of withholding the property may be relevant. A very drastic measure over a small or uncertain amount deserves extra care.
That does not mean that an expensive item may never be withheld for a lower repair bill. The assessment is more nuanced than a fixed ratio between the value of the property and the debt. You must, however, be able to explain why the right exists and why your conduct is justified in the specific circumstances.
Examine whether appropriate security can remove the ground for withholding the property. A usable bank guarantee or an agreed deposit can sometimes offer a solution. Have the amount, conditions and release assessed before you hand over the property or reject a reasonable proposal.
You must continue to take proper care of the property
Anyone who keeps property in their possession cannot act as if safekeeping no longer entails any responsibility. Take appropriate measures against loss, damage, theft and foreseeable loss of value. With sensitive equipment or perishable goods, the matter may become urgent.
Record the condition and make arrangements about necessary inspections and safekeeping. Do not use the property for your own business and do not hand it to someone else without good reason. Your payment claim does not justify private use of the customer’s car or machine.
Nor are safekeeping and storage costs automatically recoverable without limit. Examine the arrangements, their reasonableness and the legal basis. Announce any costs clearly without suggesting that any fee you choose yourself thereby becomes legally valid.
May you sell the property
A right of retention does not in itself give a free right to sell the property. Recovery and enforcement are subject to statutory procedures and often require an enforceable title. The position of owners, pledgees and other parties involved must also be assessed.
A sentence in a reminder stating that you will sell the goods after seven days does not create that power. Before any intended sale, have it examined which route is available. An unauthorised sale can lead to liability and loss of your position.
If the customer remains unreachable, document your attempts to make contact and the costs of continued safekeeping. That file may be needed for an appropriate legal solution. Looking for a buyer yourself is not a safe substitute for that assessment.
Right of retention in bankruptcy
A customer’s bankruptcy does not necessarily mean that your right of retention disappears. Article 60 of the Dutch Bankruptcy Act (Faillissementswet) contains a special arrangement. The bankruptcy trustee (curator) has powers in respect of the property, and your position on a sale or a demand for surrender must be assessed in accordance with those rules.
Notify the trustee of your claim immediately, with the agreement, invoices, proof of actual control and a clear identification of the property. Do not hand it over without an assessment just because someone says that all goods automatically fall into the bankruptcy estate. Nor should you refuse, without consultation, all cooperation with a trustee exercising a statutory power.
Special rules apply to the bankrupt’s records. An accountant or service provider cannot simply invoke retention to withhold the records the trustee needs. Have that assessed separately. The general example of a repaired car cannot simply be applied to it.
What if you have already handed over the property
Losing actual control can bring the right of retention to an end. An arrangement on temporary surrender or use is therefore not only practically but also legally important. Do not assume that a reservation in an e-mail is always sufficient to preserve your position.
If the property has left your control against your will, the law provides, under certain conditions, ways of reclaiming it. That is not permission to take the law into your own hands. Article 3:295 of the Dutch Civil Code and the specific facts must be assessed before you take action.
In a settlement, make clear on what basis you are handing over the property, what security replaces it and which claim remains. A signature for receipt of the property must not unintentionally also become a declaration of final settlement.
Example of a written notice
The text below assumes that the right of retention has been legally assessed and that you have the property in your possession lawfully. Do not add goods that are not covered by your right.
Subject: surrender of [property and identification]
We hold [property, serial number or other features] in connection with the instruction of [date]. According to our records, [amount] is outstanding under this instruction, due since [date]. The invoice, instruction and specification are enclosed.
We invoke our right of retention and suspend the surrender of the said property on account of this related claim. The property is being kept at [location] under [relevant storage conditions]. This notice does not constitute an announcement of an independent sale or transfer of ownership.
We invite you to discuss payment or a sufficiently specific proposal for appropriate security. If you dispute our claim, your authority in respect of the property or the ownership situation, we would welcome the relevant documents without delay. Once the ground for retention has ceased to exist, we will arrange the surrender with you.
Check the text with extra care where there is a third-party owner or a bankruptcy trustee. A correct letter cannot make up for a missing statutory requirement. Also keep proof of dispatch and receipt.
Fictitious example from a repair business
An entrepreneur has a production machine repaired. The repairer has the machine in his workshop and invoices €4,500. The client does not pay and demands immediate surrender. Later, a leasing company reports that it is the owner.
The repairer examines the instruction, whether the fee is due, the complaint about the repair and the client’s authority. He also documents the machine and its safekeeping. The leasing company’s ownership does not automatically mean that retention is impossible, but the authority vis-à-vis that third party must be assessed separately.
The parties may, for example, discuss appropriate security while the payment dispute is being resolved. The repairer does not sell the machine himself. The example shows that a seemingly simple unpaid repair invoice can involve several legal relationships.
If your property is being withheld
Ask the other party what claim it has, why that claim is due and what connection exists with the property. Gather your proof of ownership, instruction documents and payments. Examine whether actual control was obtained lawfully and whether contractual restrictions apply.
If your business is at an urgent standstill, interim relief proceedings (kort geding) may be considered to seek surrender, possibly against security. The court assesses the plausibility of the right and the interests involved. Entering the premises yourself or secretly removing the property can make the situation worse.
Also record the loss you claim to suffer as a result of the property being withheld. A later damages claim requires more than a general reference to lost turnover. Keep details of replacement hire, downtime, specific missed orders and the measures you have taken.
Have your position assessed before you refuse surrender
Through business law for entrepreneurs you can have it examined whether a right of retention exists and how to exercise it carefully. In addition to the payment file, bring in particular information about ownership, location, access and safekeeping. Where bankruptcy is imminent or a collection has already been scheduled, a swift assessment is important.
Draw up a surrender protocol for your staff
In practice, a right of retention can be lost because an employee hands over the property anyway. So record who decides on surrender and which conditions must first be met. A general note that the customer still has to pay is insufficient if the front desk does not know which property and which claim the right relates to.
On collection, check the identity and authority of the person collecting the property. Record the condition, the parts handed over and any keys. Do not let a confirmation of receipt contain an unintended waiver of your remaining monetary claim. If surrender takes place against security, that security must first be legally valid and usable.
Also draw up instructions for an unexpected visit from an owner, bailiff or bankruptcy trustee. Staff must forward documents immediately to the person responsible and must not make any legal commitments on their own. At the same time, an internal protocol must not be used to obstruct an authorised official without good reason.
With a valuable item, it is wise to check the insurance and storage conditions. A payment dispute may extend the storage period, while your normal cover or storage arrangement is not designed for that. Weigh the practical risks against the legal position before you continue to hold on to the property for a long time.
Frequently asked questions
May I collect goods because my customer is not paying?
A right of retention does not give a general power to do so. It concerns property that you already have in your possession lawfully. For goods at the customer’s premises, retention of title, a claim for surrender or attachment may be another route, each with its own requirements.
Is a sign with the words “right of retention” sufficient?
No. The legal claim and actual control must actually exist. On a site, visibility to others may be relevant, but a sign does not by itself create the right. The actual access and arrangements must be examined.
Can I withhold digital files?
A right of retention over tangible property cannot simply be applied to digital data. Contractual suspension, access, privacy and continuity require an assessment of their own. Blocking files can itself give rise to liability.
May I use the property while it is with me?
Not merely because you have a right of retention. You must handle the property with care, and use requires a separate legal basis. Safekeeping and necessary protection are something different from using it in your own work.
Does a right of retention lapse in bankruptcy?
Not automatically. The Bankruptcy Act contains a special arrangement with powers for the bankruptcy trustee. Notify your claim and documents immediately and have the consequences of surrender, sale or security assessed before you decide.
Can the customer obtain surrender against a bank guarantee?
Appropriate security can be a solution and can affect the ground for retention. The guarantee must offer sufficient protection. The amount, term, payment conditions and the exact claim must therefore be checked.
Further reading on this topic
- Business invoice time-barred? How to monitor your claim and interrupt the limitation period
- Invoice disputed by your customer: what can you do as an entrepreneur?
Sources and legal basis
- Dutch Civil Code, Book 3: Articles 290–295.
- Dutch Civil Code, Book 6: rules on suspension, including Articles 52–57.
- Dutch Bankruptcy Act (Faillissementswet): Articles 60 and 105b.
