15 November 2023
There are several rent regimes under Dutch law. For example, rent agreements for residential property are subject to different rules than leases for office space.
Tenants of residential property enjoy relatively high protection under the law. It is difficult for landlords to terminate such rental agreements. Barring exceptions, this requires legal grounds for termination or, for example, a breach of contract on the part of the tenant. Lessees of office space, on the other hand, enjoy a lot less protection. In fact, lessors of office space do not need legal grounds for termination of the lease at the end of the agreed term. They can terminate the lease without cause. In that case, the end date of the lease will result in the lessee being required to vacate the office space.
Nevertheless, it can sometimes take a long time until a lessee actually has to vacate the leased office space. This is because lessees of office space can apply to the courts for protection against eviction. In extreme cases, this allows a lessee to continue to use the leased property for three years after the end of the lease. You can read exactly how this works in this article.
Article 7:230a of the Dutch Civil Code (Burgerlijk Wetboek) stipulates that a lessee of ‘other business premises’ (read: office space) may file an application with the courts within two months of the date of the notice of eviction, in which the lessee requests protection against eviction. After the termination of the lease and the notice of eviction, a lessee can remain in the office space for at least two months without being able to be forced to leave.
It also follows from Article 7:230a of the Dutch Civil Code that it is important for lessors to give timely notice of termination of the lease as well as written notice of eviction of the leased office space. If this does not take place correctly, the lessee is not required to vacate the office space.
The lessee can file an application for protection against eviction with the subdistrict court. As long as the subdistrict court has not made a decision on the application, the lessee cannot be forced to vacate the leased office space. In practice, the subdistrict court may easily take six months to make a decision.
During the procedure, the subdistrict court weighs the interests of the lessee against the interests of the lessor. If the subdistrict court finds that the lessee’s interests in continuing to use the leased office space are more seriously harmed than the lessor’s interests, the eviction period is extended. All the circumstances of the case play a role in the court’s assessment. In particular, the subdistrict court looks at the lessee’s ability to find comparable rental space nearby and the lessor’s plans for the leased office space.
If the eviction period is extended by the subdistrict court, this is for a maximum of one year from the date of filing the application. It is not possible to appeal against a decision of the subdistrict court. It is also important to note that the lessee can file such a request again before the expiry of the extended eviction period, and even again thereafter. In total, this allows a lessee to extend its lease for up to three years. In practice, however, this is rare.
After the lease has ended, the lessee no longer pays rent, but instead pays a usage fee. The usage fee is often equal to the last applicable rent, but that does not have to be the case. In fact, the lessor can ask the subdistrict court to set a reasonable usage fee. The usage fee may therefore be higher if the prices at the location are higher than the last applicable rent.
A lessee cannot claim protection against eviction in every situation. A lessee cannot claim protection against eviction if the lessee terminated the lease itself, the lessee consented to the lessor’s termination, or if the lessee breached its obligations under the lease. The last exception concerns a situation where – after the lease is concluded – it is agreed that the lessee will not invoke protection against eviction. However, it is not possible to agree on this when entering into the lease.
Do you, as a lessor or lessee, have questions about the termination of a lease and/or protection against eviction? If so, please feel free to contact me or one of the other specialists at GMW lawyers to discuss your options.
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