7 January 2022

Consequences of corona measures and rental discount

By Raymond de Mooij

What are the consequences of corona measures and rental discount?

The subdistrict court in Roermond has asked the Supreme Court to answer a question. One that has been occupied the lower courts for some time: can the consequences of the government-imposed closure of the catering industry in connection with the corona crisis be regarded as a “defect” or unforeseen circumstance? And if so, how should a rent reduction be calculated?

Shortly before Christmas – on December 24, 2021 – the Supreme Court brought light into the darkness. In answering the question, the Supreme Court incidentally broadened the case beyond the lease of catering spaces in that its ruling also covers the lease of other retail and industrial spaces as referred to in Section 7:290 of the Dutch Civil Code.

Unforeseen circumstance

First of all, the Supreme Court ruled that a tenant who is dependent for their turnover on the arrival of the public and who is unable to exploit the business space they have leased or can only exploit it to a limited extent due to government measures and who has concluded a lease agreement before 15 March 2020 can invoke an unforeseen circumstance as referred to in Section 6:258 of the Dutch Civil Code. The judge can then adjust the lease by reducing the rent.

Consequences of corona measures and rental discount

The Supreme Court further ruled that from the legislative history of Section 7:204 of the Dutch Civil Code it does not follow that general government measures that are unforeseeable for the parties and that are aimed at restrictions in the conduct of the business can be regarded as a defect within the meaning of the law. After all, the closure of the catering industry and other business premises imposed by the government does not relate to the leased property itself. In short: the corona measures are not a defect.

Rental discount calculation

The Supreme Court has also provided a tool for calculating the rent discount on the basis of unforeseen circumstances. This is in line with the “fixed burden method” referred to earlier by the Amsterdam Court of Appeal. The steps to be taken are listed in the decision of 24 December 2021. It is not all that simple, but the outcome seems reasonable.

a. The agreed rental price is expressed as a percentage of the total amount of fixed costs.

b. The part of the Tegemoetkoming Vaste Lasten/ Compensation for Fixed Charges corresponding to that percentage to which the tenant can claim, is deducted from the amount of the agreed rent.

c. The percentage reduction in turnover is determined by comparing the turnover in the period over which the rent reduction is calculated (hereinafter: the lower turnover) with the turnover in a comparable period prior to the corona pandemic (hereinafter: the reference turnover) according to the formula: 100% – ( 100% x (the lower turnover : the reference turnover)).

d. The disadvantage associated with the disruption of the value relationship is equally divided between the landlord and the tenant (each 50% of the disadvantage), unless it is reasonable to follow a different distribution. The amount of the rental discount can therefore be calculated according to the formula:

(agreed rent – part of the Tegemoetkoming Vaste Lasten/ Compensation for Fixed Charges that is allocated to the rent) x percentage reduction in turnover x 50%.


The Supreme Court ruling did not really come as a surprise to many. In the sense that we must consider the consequences of the corona measures as an unforeseen circumstance. And must justify a reduction in rent. The fact that the corona pandemic and the resulting measures don’t result in a defect may be interesting to lawyers. But in practice less so. Landlords and tenants will particularly be interested in the (amount of) rent discount that can be negotiated. And less so in the legal basis.

Finally, in consideration 2.4 of the judgment the following starting point of the Supreme Court is described:” There is a need in society to divide the damage of the corona government measures for tenants of industrial space between tenants and landlords.”

I think that the need to share “the pain” of corona with landlords is felt especially among the tenants of retail and commercial space. And not so much with society. Because that same society would then also be concerned about the landlords. Despite the damage they suffer due to rent reductions, they still have to repay their banks and pay interest. I am not aware of such social compassion. Rather, it seems that tenants’ trade associations (INretail and KHN) have fought for the interests of their members. And with (more) success than their colleagues on the landlords’ side.


Would you like more information on rent reduction as a result of the corona measures? Or do you have other questions about your rent and/or property related matters? Please do not hesitate to contact us.

Raymond de Mooij

Raymond de Mooij

Lawyer / partner

Raymond de Mooij is one of the founders of GMW lawyers. He has been a lawyer since 1989, specialising in real estate law and tenancy law.

Related blogs

31 January 2024

Robot lawyer

A ‘robot lawyer’ has been made available on the market in America. This is an app with legal information that would make using a lawyer unnecessary. ‘Fight corporations’, ‘find hidden money’, ‘beat bureaucracy’. This is what the robot can and will do. ‘Sue everybody,’ is the urgent advice.

Read more

24 January 2024

Contracting work

A building contract exists when one party, the contractor, undertakes to the other party, the client, to deliver work for payment of a sum of money.

Read more

6 December 2023

Didam judgment: contracts void or voidable?

In the context of administrative law, the Division has previously ruled that public bodies are required by the principle of equal opportunity or equality to provide interested parties with scope to compete in the event of scarcity.

Read more