Закон про комерційну оренду: 7:290 торговельні приміщення проти 7:230a бізнес-приміщення

Голландська реклама право оренди has two regimes. Retail, hospitality and hotel space falls under Article 7:290 of the Dutch Civil Code (BW) and is strongly protected: five plus five years, termination only on statutory grounds and a court-set rent review. All other non-residential buildings, such as offices and warehouses, fall under Article 7:230a BW: the contract governs, and the tenant only has protection against eviction for at most three years.

Which regime applies is decided by the law, not by the heading on your contract. That classification determines how long you are tied in, how either party can end the lease and whether the rent can be reviewed by the court.

Which regime applies to your premises?

Article 7:290 BW applies if the space is let for a shop, a restaurant or café, a takeaway or delivery service or a craft business (ambachtsbedrijf), with an area open to the public for direct delivery of goods or services. Hotels and campsites are covered as well, and so is a flat above the shop that belongs to the premises. This is 290-кімнатна кімната: the high street, the shopping centre, the restaurant.

Every other built property that is not residential space is додаткові приміщення для бізнесу under Article 7:230a BW. Offices, distribution centres, workshops without a public counter, storage units and the practices of accountants, physiotherapists and consultants all fall here. There is no third category.

The test is the use agreed in the lease, read together with the actual use. A lease labelled “office lease” does not escape Article 7:290 BW if the tenant runs a shop with a public counter. Under Article 7:291 BW the 7:290 rules cannot be set aside to the detriment of the tenant, so a clause opting for the 7:230a regime has no effect on space that objectively is retail space. A more detailed comparison is in our article on 7:290 проти 7:230a для комерційних приміщень.

Який термін дії договору оренди 7:290?

Under Article 7:292 BW a 7:290 lease runs for five years, or for the longer fixed term agreed. After the first five years it is extended by law for a second five-year term. If the first term was longer than five but shorter than ten years, the second term is shortened so that the total is ten years.

If nobody gives notice at the end of the second term, Article 7:300 BW continues the lease for an indefinite period, unless the parties agreed a new fixed term. Either party can then give notice, but the landlord still needs a statutory ground and, if the tenant does not agree, a court decision.

The short-lease exception

Article 7:301 BW takes a lease of two years or less outside the protective rules of Articles 7:291 to 7:300 BW. This is the usual route for pop-up shops and trial locations. If the tenant stays in the premises for longer than two years, a five-year lease applies by law on the agreed terms, with the two years already elapsed counted towards it. Letting a short lease drift on is how landlords accidentally create a long commitment.

Clauses that depart from the protection

Clauses that depart from the 7:290 rules to the tenant’s detriment are not automatically void, but the tenant can have them annulled unless the kantonrechter (subdistrict court) approved them (Article 7:291 BW). Approval is only given if the clause does not substantially affect the tenant’s statutory rights, or if the tenant’s position is such that it does not need the protection. A deviation from the substitution right in Article 7:307 BW can never be approved.

How is a 7:290 lease terminated?

A protected retail lease does not end automatically when its term expires. Under Article 7:293 BW notice must be given by bailiff’s writ (exploot) or registered letter, with a notice period of at least one year, to the end of a term. A landlord’s notice that does not state the grounds is void under Article 7:294 BW.

If the tenant has not agreed to the termination in writing within six weeks, the lease continues by law. Under Article 7:295 BW the landlord must then ask the kantonrechter to set the date on which the lease ends. Until that decision is final the tenant may stay, unless the court declares its judgment provisionally enforceable because the tenant’s defence is clearly unfounded. Our page on розірвання договору комерційної оренди sets out the timeline.

Which grounds can the landlord use?

At the end of the first term Article 7:296(1) BW allows only two grounds. The first is that the tenant has not run the business as a good tenant should, for example through structural заборгованість за оренду or use contrary to the lease. The second is urgent own use: the landlord, a spouse, registered partner, first-degree relative or foster child needs the premises for durable personal use, which includes a renovation that is impossible without ending the lease. Selling the premises is not own use.

A new owner cannot rely on urgent own use if notice is given within three years after the tenant was informed in writing of the change of ownership (Article 7:296(2) BW). This waiting period does not apply if the new owner is the previous landlord’s spouse, registered partner or first-degree relative.

At the end of the second term the court weighs the interests of the landlord against those of the tenant and any authorised subtenant (Article 7:296(3) BW). The claim is in any event granted on the two grounds above, if the tenant refuses a reasonable offer for a new lease that does not concern the rent, or if the landlord wants to realise a use that the applicable environmental plan (omgevingsplan) assigns to the property (Article 7:296(4) BW).

When the court ends the lease, Article 7:297 BW allows it to order the landlord to contribute to the tenant’s removal and refitting costs. A tenant can give notice at the end of a term with at least one year’s notice and does not need to give any reason.

How does rent review under Article 7:303 BW work?

Only 7:290 space has a statutory rent review. Under Article 7:303 BW the landlord or the tenant can ask the kantonrechter to reset the rent after the agreed fixed term has ended, and otherwise each time at least five years have passed since the last agreed rent took effect or the last court-set rent was claimed.

The benchmark is the average rent of comparable business premises in the same locality over the five years before the claim, adjusted to the current price level (Article 7:303(2) BW). Improvements paid for by the tenant do not justify a higher rent. Because the average covers five years, a review rarely produces the jump either party hoped for.

Under Article 7:304 BW the claim is only admissible if it comes with an expert advice on the new rent, drawn up by one or more experts appointed jointly by the parties. If the parties cannot agree on an expert, the court appoints one at the request of either party, and the date of that request counts as the date of the claim. The new rent applies from the date of the claim, unless the court sets another date; it can also phase the change in over up to five years.

Tenants of 7:230a space have no such right. Their rent is what the contract says, usually indexed each year to the consumer price index of Statistics Netherlands (CBS). Outside the contract, only Article 6:258 BW on unforeseen circumstances allows the court to adjust a lease, and courts apply it with restraint.

What protection does a 7:230a tenant have?

For other business space the contract decides how and when the lease ends; the landlord needs no statutory ground. What the tenant has is protection against eviction under Article 7:230a BW, which cannot be set aside to the tenant’s detriment.

After the lease has ended, the tenant can ask the kantonrechter to extend the period for vacating the premises. The request must be filed within two months after the date by which the landlord has demanded vacation in writing. Filing it suspends the obligation to leave until the court has decided.

The court only grants the extension if the interests of the tenant and any authorised subtenant are harmed more seriously by eviction than the landlord’s interests by continued use. It refuses the request if the landlord shows improper use, serious nuisance or non-payment of rent. Each extension is for at most one year; the tenant can ask twice more, each time at least one month before the current period expires, so the maximum is three years after the end of the lease.

The court sets a reasonable fee for the extended use, based on local rent levels, if the parties disagree. No appeal is possible against its decision (Article 7:230a(8) BW). The protection does not apply if the tenant gave notice, expressly agreed to the termination, or was ordered to vacate because of non-performance.

Can you transfer or sublet the lease?

A tenant of 7:290 space who sells the business can ask the kantonrechter under Article 7:307 BW to substitute the buyer as tenant, even against the landlord’s will. The tenant must have a compelling interest (zwaarwichtig belang) in the transfer, and the court always refuses if the new tenant does not offer sufficient guarantees for full performance of the lease and proper running of the business.

Tenants of 7:230a space have no such right. A change of tenant then needs the landlord’s cooperation through a contract takeover under Article 6:159 BW, and most leases based on the Модель оренди ROZ prohibit assignment and subletting without written consent.

For an overview of the practical side, see the government pages on оренда бізнес-житла і на оренда, купівля або лізинг приміщень для бізнесу.

Що вам слід перевірити як орендарю?

• Check whether the agreed and actual use makes the premises 7:290 or 7:230a space.
• Check any clause that departs from the 7:290 protection and whether the kantonrechter approved it.
• Check the maintenance split, indexation, bank guarantee and reinstatement obligations in the ROZ general provisions.
• As a 7:230a tenant, diarise the two-month deadline for asking the court to extend the vacating period.
• Check whether a business sale requires substitution under Article 7:307 BW or the landlord’s consent.

Що вам слід перевірити як орендодавцю?

• Check that notice to end a 7:290 lease is given by bailiff’s writ or registered letter, at least one year before the end of the term.
• State every ground for termination in the notice itself; grounds cannot be added later (Article 7:294 BW).
• Check whether you bought the premises less than three years ago before relying on urgent own use.
• Ask the kantonrechter to approve break options or other deviating clauses when the lease is signed.
• Do not let a lease of two years or less run on beyond two years unless you accept the full protection.

Що ми можемо зробити для вас з комерційною орендою?

Команда адвокати з питань оренди act for landlords, retailers, hospitality operators and international companies.

• We determine whether your premises fall under Article 7:290 or 7:230a BW.
• We review and negotiate your lease, including the ROZ general provisions and break options.
• We draft the request to the kantonrechter to approve a deviating clause.
• We draft and serve the notice of termination with the correct grounds and notice period.
• We conduct rent review proceedings under Articles 7:303 and 7:304 BW, including the expert stage.
• We file the request to extend the vacating period within the two-month deadline.

Резюме

• Retail, hospitality and hotel space falls under Article 7:290 BW; all other non-residential buildings under Article 7:230a BW.
• A 7:290 lease runs for five plus five years and ends only by notice of at least one year, with grounds, and a court decision if the tenant objects.
• Only 7:290 tenants and landlords can ask the court to reset the rent, and only with an expert advice (Article 7:304 BW).
• A 7:230a tenant can only ask for extra time to vacate: within two months, for at most three years in total.

Часті питання