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A rental agreement is, by its very nature, of short duration and offers no rent protection. This follows from Article 7:232(2) of the Dutch Civil Code (Burgerlijk Wetboek). Case law has long held that this meaning only applies to holiday accommodation, including temporary stays during emergencies. As a result, a hotel guest cannot claim their room for longer than their its booking allows. Offering someone decant accommodation for a small fee does not automatically make that person a tenant.

This is an important rule. The main rule in Dutch rental law is that tenancy commences from the moment that an agreement is reached to give property to another person for use, and the other commits to fulfilling their obligations in turn. This means that if it were not for the exception regarding the short-term nature of the agreement, a hotel guest would be able to claim rent protection. That is not the idea.

Landlords, however, are increasingly claiming that rental agreements have a short-term nature beyond that of a hotel stay or decant accommodation, and are therefore offering short-stay rental agreements, especially to foreign students or workers. These rental agreements state that they are, by their nature, short-term agreements. While these rental agreements are usually for six months, there are also some one-year agreements. These rental agreements also state that they end without the landlord being required to provide a notice of termination. The tenant is also unable to terminate the agreement early. How exactly does this work?

Broadening of the concept ‘short-term nature’

In 2014, the Arnhem-Leeuwarden Court of Appeal supported a broader interpretation of ‘short-term nature’. Both in practice and in case law, the Court’s interpretation has subsequently been followed as a guideline. [1]
The Court recognises that the exception of Article 7:232(2) of the Dutch Civil Code should be applied very cautiously and that it is only intended for cases where it is clear to everyone that there cannot and should not be any reliance on rent protection. It is then found as follows:

6.4

The Court notes that unlike the ‘normal’ rooms in the complex, De Huismeesters offers the student room in question fully furnished, including the option of renting additional bed linen (duvet cover, pillowcase and fitted sheet) for €18.50 per stay. It is also notable that there is 24-hour service, supervision and cleaning facilities ‘all this in comparison with the rental of a hotel room’, which does not exactly correspond to the image of a typical student room. While [appellant] complains that her accommodation cannot be compared to the best example of a holiday home, as mentioned in the parliamentary history of Article 7:232(2) of the Dutch Civil Code, the latter does indicate a temporary guest house rather than regular rental accommodation.

6.5

When entering into the rental agreement, it must have been clear to [appellant] that the offer of De Huismeesters was only for temporary accommodation. The contract she signed (quoted above under 3.4) mentions this several times and is not open to misunderstanding in that respect. Although [appellant] correctly argues that the text of the agreement is not conclusive, it is not without significance here, also in view of its clarity.

It is also significant that the offer was inextricably linked to her arrival from abroad, so that [appellant] should have reasonably understood that it was intended as initial accommodation. (…) Given this particular context, [appellant] should have realised that the limitation in duration was necessary to facilitate the arrival of foreign students in the following academic year as well. After all, as has been established between the parties, this was accommodation in a scarce market that is difficult-to-access from abroad, which was guaranteed to the training institute with which she was registered. The accommodation rented by [appellant] was part of a segment of the student housing market reserved specifically for foreign students, to which ‘ordinary’ Dutch students did not have access.

Accordingly..

Accordingly, it must have been clear to [appellant] that the occupation of the room was intended to be a short-term special right of use, whereby she would have to make room for the next students after a maximum of one year.
To that extent, short-stay student rooms are also somewhat similar to decant accommodation. It is assumed that these fall within the scope of Article 7:232(2) of the Dutch Civil Code.

In view of the above, the mere fact that the duration of the rental agreement is ten months in this case does not mean that it ‘therefore does not’ qualify as an agreement with a short-term nature.

The Court therefore finds that a rental agreement can have a short-term nature beyond that of a hotel stay or decant accommodation.
[1] ECLI:NL:GHARL:2014:3195 and previously ECLI:NL:RBSHE:2012BX5069

Opposing view

In 2015, the Amsterdam Court of Appeal provided an opposing view[2]. It found that precisely because of the reservation that must be applied when classifying a rental agreement as having a ‘short-term nature’, the landlord should have opted for an alternative option, which according to the Court existed in this case. The landlord could have opted for a campus clause, as referred to in Article 7:274(4) of the Dutch Civil Code. If the tenant cannot prove in a year’ time that they are still a student, and therefore no longer belongs to the intended target group, the landlord has the right to terminate the rental agreement if it needs to rent the property to someone who does belong to the target group. The Court therefore found that the rental agreement could not be classified as having a ‘short-term nature’.

However, it remains to be seen whether this ruling would have been upheld if it had been referred to the Supreme Court. In fact, the Supreme Court ruled back in 2012 that the fact that there is an alternative route does not preclude the possibility that a rental agreement can be short-term by its nature. This is only possible if that alternative route is to be regarded as an exclusive arrangement, which must therefore be compulsorily used,[3] which is not the case with the route of Article 7:274(4) of the Dutch Civil Code (the campus clause).

[2] ECLI:NL:GHAMS:2015:1924
[3] ECLI:NL:HR:2012:BV2628

Conclusion

Even apart from the situation of a hotel stay or decant accommodation, a rental agreement may have a short-term nature whereby the tenant is not entitled to rent protection. It then important for the landlord to pay attention to the following issues:

  1. Is it full-service accommodation? For example, are cleaning services, meal services, laundry and ironing services, etc. available.
  2. Is there a specific target group that needs priority?
  3. Is it clear that the tenant should have realised that it is temporary?

If the above points are not met, then it is up to the landlord to advise the tenant about an alternative route. Because in such case:

THIS IS NOT A SHORT-STAY HOTEL!

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