7 August 2024
Whose responsibility are the costs of maintenance and repair of the property: the tenant or the landlord? It is a question that often leads to discussion and is subject to much litigation. This blog focuses on the statutory regulation and the deviating regulation of the ROZ model contracts.
In general, major maintenance is the responsibility of the landlord, while the tenant is obliged to carry out the minor repairs under Article 7:217 of the Dutch Civil Code. The ‘Decision on minor repairs’ (‘Besluit kleine herstellingen’ which can be found on: https://wetten.overheid.nl/BWBR0014931/2003-08-01) contains a non-exhaustive list of minor repairs that are the responsibility of the tenant, such as replacing light bulbs and keeping gutters and rain gutters clean.
Article 7:217 of the Dutch Civil Code is a directory provision, so in principle, the parties can make deviating agreements in the tenancy agreement regarding the division of maintenance and repair costs. This does not apply – with exceptions – to residential tenancy agreements. Article 7:242 of the Dutch Civil Code stipulates that no derogation to the statutory regulation of Article 7:217 can be made to the detriment of the tenant, unless it concerns repairs to items installed by the tenant himself. This could include a tenant who has installed a new kitchen in the rented property. In that case, the maintenance and repair costs of the kitchen are borne by the tenant instead of the landlord.
Parties are allowed to deviate from the statutory regulation in the case of retail space. Therefore, it is important to determine what exactly is being rented out. When renting out retail space, the ROZ model contract for retail space is often used, which involves ‘shell rental’. Article 1 general provisions (2022) lists what belongs to the shell (for example: foundations, outer walls, etc.). Article 14 of the general provisions (2022) contains the regulation regarding maintenance, repair, and renovations. In general, the maintenance, repair, and renovation costs of structural parts (such as foundations, building floors, outer walls, etc.), stairs, drainage, exterior frames, installations, and exterior painting are borne by the landlord, unless they concern minor repairs to these items. The costs for all other maintenance and repair are borne by the tenant.
Although the ROZ model contract is widely used, further agreements can be made. The parties can also agree that all costs, such as insurance costs, ownership expenses, and all maintenance of the property, are borne by the tenant. This is called a ‘triple net tenancy agreement’.
The ROZ model contract for office space is also widely used. Article 1 of the general provisions (2015) states that all installations and facilities present in the rented property belong to the rented property unless they are exempted in the delivery report. In principle, the extent of the rented property is therefore larger than with retail space. This also means that the maintenance obligation for the landlord is generally greater. Article 11 general provisions contains the regulation on maintenance, repair, and renovations. This largely corresponds to the regulation for retail space.
Landlords and tenants often have discussions about the division of maintenance costs. It is therefore in the interest of both parties to make clear agreements about this, for example by attaching a demarcation list to the tenancy agreement. However, this is often forgotten.
The division is usually clear in residential tenancy agreements, but there is more room for discussion in retail and office space tenancy agreements. It is therefore important to make clear agreements in advance, for example with a demarcation list.
Do you need assistance in drafting a tenancy agreement? Or do you have questions about the division of maintenance and repair costs? Please feel free to contact me or one of the other specialists at GMW Advocaten to discuss your options.
