Dutch tenancy law distinguishes between 3 different types of lease agreements. One of them is the lease of ‘other commercial premises’, such as offices, daycare centres, museums, clinics, etc. The rental rules for other commercial premises offer less tenant protection than for the other two types of premises, residential space and retail space. Tenants of “other commercial premises” have one right that other types of tenants do not have, namely eviction protection. If a claim to eviction protection succeeds, the tenant does not have to leave the building for the time being. Below we describe when this can be used, how it can be invoked, and when a request for eviction protection has a chance of success.
What is eviction protection?
Eviction protection ensures that the tenant may continue to occupy the leased building even after the end of the lease agreement. Usually the tenant requests eviction protection if they have not yet found another location. If, as a tenant, you have a strong case and the court agrees, you may remain in the leased building for up to a maximum of 3 years.
In which situation can eviction protection be used?
First of all, you must be a tenant of other commercial premises. According to the law, other commercial premises are: “a built immovable property or part thereof, which is neither residential space nor (retail) commercial premises […].” So not shops and not homes, but what then? Examples of other commercial premises are offices, factories, warehouses, cinemas, museums, clinics, daycare centres, etc. In most cases this can be found in the lease agreement. In any case, it is mentioned in the commonly used ROZ model agreements.
Furthermore, eviction itself only becomes relevant once the landlord no longer wants to lease the space to the tenant. This happens more often than you’d think. A landlord can sometimes achieve a much higher rent in a scarce market simply by giving notice and putting in a new tenant who is willing to pay much more. For a lease agreement for an indefinite period, the landlord will have to give notice to terminate the lease, observing the agreed notice period, in order to end the lease. If it is a lease agreement for a fixed term (without an interim termination right), notice may not be given in the interim and the lease will, in principle, simply expire automatically.
The end of the lease does not immediately mean that the tenant has to leave the building. Landlords must also still give notice of eviction for a specific date. This date must, at the earliest, be the date on which the lease agreement ends (or a later date). So if the lease agreement runs from 31 December 2016 to 31 December 2021, the landlord can give notice of eviction as of 31 December 2021.
When does a tenant not get eviction protection?
Tenants can no longer invoke eviction protection if the landlord can prove that the tenant agreed to the termination, or was the one who initially gave notice. Tenant and landlord can also agree during the lease term that the tenant will not invoke eviction protection.
How does one invoke eviction protection?
Do you, as a tenant, receive a letter containing notice of eviction? Then you have 2 months to defend against this. Within these 2 months, the landlord cannot require the tenant to leave. This period starts from the date of the notice and logically ends 2 months later. In our example, therefore, from 31 December 2021 to 28 February. The tenant defends against this by engaging a legal expert. This expert draws up a petition for the tenant, which will be sent to the court. Until the court has made a decision, the tenant is not yet obliged to leave the building.
How do courts assess the request to suspend the eviction?
When the court receives the petition, it will have to weigh the interests of tenant and landlord against each other. If it is of the opinion that the tenant’s interests are disproportionately affected, it will grant the tenant’s request. In practice, the court mainly looks at:
- How important is the leased premises for the continued existence of the tenant?
- What plans does the landlord have for the leased premises?
- Was the tenant a good tenant, or did they use the premises improperly, cause nuisance, or regularly fail to pay or pay late?
- Did the tenant have good reason to trust in an extension of the lease? Think here, for example, of negotiations conducted up to the end of the lease agreement.
- How long before the end of the lease agreement was the lease terminated and eviction announced? Did the tenant have sufficient time to look for alternative premises?
- Did the tenant do their best to find an alternative, comparable space? Think here of engaging a rental agent or having a market survey carried out.
Does the court consider that the tenant’s interest has been disproportionately harmed? Then the tenant may remain in the leased premises for up to a maximum of 1 year after the announced eviction date. Before that period expires, the tenant may apply to the court for an extension of the eviction (for another maximum of 1 year). This can then happen once more, so that the maximum period between the date against which eviction was announced and the final date of eviction is a maximum of 3 years.
Does the tenant have to pay rent during this period?
No, but they do have to pay a usage fee. Generally, this amount is equal to the rent that would have to be paid under the lease agreement. In any case, a landlord cannot easily force a higher rent through this route.
If the tenant disagrees with this amount, they can also have the amount of the usage fee determined by the court. The party wishing an adjustment of the fee will have to submit documents in the proceedings to substantiate this. The amount to be set must be ‘reasonable’ ‘given the local rent level’. An adjustment is also possible if there is reduced enjoyment of the leased premises. In general, courts fairly rarely adjust the usage fee upon request.
Our corporate lawyers specialise in tenancy law and assist both tenants and landlords. Would you like to know more about this or do you need advice? Then contact us via info@thelegalcompany.nl or call 020-345 0152.
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