Introduction
Dutch lease law for commercial premises is a system of finely meshed rules that seeks a balance between protection of the tenant and the parties' freedom of contract. This article addresses the full framework in five parts: the question whether a lease exists at all, the rules on termination and eviction for each category of commercial premises, the possibility of interim rescission, the statutory defects regime and the rules on service charges. The emphasis is on the practical consequences for landlords and tenants of commercial premises.
Lease or loan for use: when does lease law apply at all?
Before the protective rules of lease law come into play, it must be established that a lease exists. Section 7:201(1) DCC defines a lease as the agreement whereby the landlord makes a thing available for use and the tenant provides consideration in return. Where that consideration is absent, the arrangement is a loan for use (bruikleen) (Section 7A:1777 DCC) and the user has no tenancy protection whatsoever.
In practice, the distinction is less clear than it appears. For the temporary use of vacant buildings, pending demolition or redevelopment, owners regularly opt for a loan-for-use arrangement. The question is then whether the payment made by the user qualifies as consideration.
The Supreme Court applies a two-stage test. First, the agreed rights and obligations are established using the Haviltex standard (Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158). The classification question then follows: do those rights and obligations meet the statutory definition of a lease? The name the parties give the agreement is not decisive, the substance determines the classification (Supreme Court 6 March 1964, NJ 1964/215; confirmed in Supreme Court 20 December 2019, ECLI:NL:HR:2019:2034 and Supreme Court 6 November 2020, ECLI:NL:HR:2020:1746).
When is a payment consideration?
A payment intended solely to cover direct user costs, gas, water, electricity, administration, minor maintenance, does not, in principle, count as consideration. As soon as the payment is directly connected to making the thing available and is more than symbolic, however, this points to a lease (Supreme Court 2 June 2023, ECLI:NL:HR:2023:828).
Owner's charges that are passed on, mortgage costs, building insurance, are not direct user costs. Payment for these is consideration. The same applies to work the user carries out for the owner but that is unrelated to the user's own use, such as supervising an adjacent site. The Court of Appeal Arnhem-Leeuwarden classified such maintenance as consideration in kind (Court of Appeal Arnhem-Leeuwarden 15 June 2021, ECLI:NL:GHARL:2021:5822).
The burden of proof lies with the party granting use: anyone who receives a payment but does not want a lease must be able to demonstrate, item by item, that the payment does not exceed the actual management costs. In a Supreme Court judgment of 2023 the issue was whether a contribution of €150 per month matched the management costs (€177.50 after correction). The Supreme Court held that the court of appeal had insufficiently reasoned why that fee could not be attributed to management costs, quashed the judgment and referred the case back; the classification as lease or loan for use thus remained open.
Section 230a premises: termination without grounds, but with eviction protection
Premises within the meaning of Section 7:230a DCC, offices, warehouses, professional practice spaces, enjoy no security of tenure. The landlord need not put forward any statutory grounds for termination and the notice of termination is, in principle, not subject to formal requirements, unless the contract provides otherwise. Many agreements require dispatch by registered post or a bailiff's writ.
Term and termination
A fixed-term lease without a renewal clause ends by operation of law when the term expires. Interim termination is not possible unless a break option has been agreed. Where there is a renewal clause, tacit continuation for a further period, notice must be given in good time to prevent renewal.
If a lease is tacitly continued after expiry because the tenant keeps paying and the landlord does not object, a lease for an indefinite term arises under Section 7:230 DCC. The statutory notice period is then at least one month (Section 7:228(2) DCC). For long-standing relationships, however, that period may be too short: the requirements of reasonableness and fairness may mean that a weighty reason, a longer notice period or an offer of damages may be necessary (Supreme Court 2 February 2018, ECLI:NL:HR:2018:141); this is a general standard of contract law (Section 6:248 DCC), not specific to lease law, and in that case, a licensing dispute, the Supreme Court found the notice period used to be adequate.
Eviction protection: procedure and time limits
The end of the lease does not automatically mean the tenant must leave. The landlord must give written notice of eviction, with the eviction date coinciding with or falling after the end of the lease. After that notice, the tenant has two months to file a petition for extension with the district court. During those two months, no eviction may take place. If the petition is filed, the bar on eviction applies until the court decides.
The court weighs the interests of both parties and grants the petition if the tenant would be more seriously harmed by eviction than the landlord by continuation. Improper use, serious nuisance or non-payment leads to refusal. An extension is possible up to a maximum of one year after the end of the lease, and can be extended twice more, the total eviction protection amounts to a maximum of three years. Further petitions must be filed no later than one month before the current protection expires, on pain of inadmissibility.
Eviction protection is semi-mandatory law: waiving it when the agreement is concluded is not legally valid. Waiving it at a later point is. A tenant who gives notice himself or expressly agrees to termination likewise has no right to eviction protection. No appeal or cassation lies against the court's decision, save on the grounds for breaking through the appeal bar (doorbrekingsgronden).
Section 290 premises: termination only on statutory grounds
The tenant of premises within the meaning of Section 7:290 DCC, shops, restaurants, cafés, hotels, enjoys extensive security of tenure. The landlord can terminate only on exhaustive statutory grounds, by registered letter or bailiff's writ, with a notice period of at least one year.
Term and renewal
The law prescribes a minimum term of five plus five years (Section 7:292 DCC). A shorter first term is possible only if it is two years or less, the lease then ends by operation of law without the tenancy protection of Sections 7:291-300 DCC applying. That makes the short term suitable for temporary use, but the risk is real: if use continues after expiry, the elapsed time counts and the five-year regime applies after all.
After the second period, the lease continues for an indefinite term, unless the parties expressly agree a new renewal term. A deviation to the tenant's detriment is voidable, unless the subdistrict court grants prior approval.
The four grounds for termination
After the first five-year period, the landlord can terminate on two grounds (Section 7:296 DCC):
1. Conducting the business other than as befits a good tenant. This requires a pattern, a combination of factors such as structurally late payment, neglecting the premises and causing nuisance. A single incident or late payment alone is insufficient. The landlord need not demonstrate fault or specific loss.
2. Pressing personal use. This also includes use by the spouse, registered partner, blood relatives and relatives by marriage, foster children or an affiliated legal entity. Renovation in which the leased property cannot be preserved also falls within it. "Pressing" means that the intended use serves a substantial interest, assessed against all the circumstances of the case at the time of the court's decision. In the case of succession in title, a three-year period applies: this ground cannot be invoked within three years of the tenant being notified of the transfer of ownership.
After the second period, two further grounds are added:
3. Refusal of a reasonable offer for a new agreement. The offer may not consist solely of a rent increase, the separate procedure under Section 7:303 DCC exists for that. Amending outdated clauses or adjustments in connection with renovation are, however, permitted.
4. Realisation of a designated use under the applicable environmental plan (omgevingsplan). Both the formal designation and a genuine intention to realise it must be demonstrated.
Weighing of interests as a safety net
Only after the second five-year period, and only if none of the four grounds for termination succeeds, can the court terminate the lease on the basis of a weighing of interests. All circumstances are weighed, including factors that fall outside the exhaustive grounds. The wish to let the premises to a new tenant at a higher rent is, however, not a valid interest in that weighing, the Court of Appeal Amsterdam confirmed this in 2024.
Procedure after termination
After termination by the landlord, the tenant must state within six weeks whether he agrees. If the tenant does not respond, or does not respond in time, the landlord must enforce the termination through the court. Only the grounds stated in the notice of termination are assessed, anyone who forgets to include a ground cannot raise it later. If the claim is granted, the court sets the eviction date, which constitutes an enforceable title.
Interim rescission and eviction for breach
Where a tenant structurally fails to pay or causes serious nuisance, waiting for the end of the lease term is undesirable. Section 6:265 DCC then offers the possibility of rescission: any failure in performance justifies rescission, unless the failure, given its special nature or minor significance, does not justify that rescission.
Rescission versus eviction
Rescission terminates the lease in law, both parties are released from their obligations. Eviction ends the actual use without affecting the agreement. In practice, both are often claimed together: rescission in proceedings on the merits, possibly preceded by eviction in preliminary relief proceedings (kort geding).
For leases of both Section 230a and Section 290 premises, rescission is possible only through the court (Section 7:231 DCC). Extrajudicial rescission is possible only in the case of defects that make enjoyment of the leased property entirely impossible, or in the case of closure under the Municipalities Act, the Opium Act or the Housing Act.
Preliminary relief proceedings or proceedings on the merits
Proceedings on the merits lead to a final ruling but take at least six months. In preliminary relief proceedings, the judge can grant eviction as an interim measure but cannot order rescission. After eviction in preliminary relief proceedings, the lease formally continues to exist, an empty shell, but with the risk that the tenant is vindicated in later proceedings on the merits and the landlord is liable for the consequences of the eviction.
Practical standards from the case law
A number of settled standards emerge from the case law. Rent arrears of three months or more, in principle, justify rescission and eviction, unless special circumstances mean that the breach does not justify rescission, for example, a long, trouble-free tenancy relationship with temporary payment difficulties. If the arrears are cleared before the hearing, the judge in preliminary relief proceedings usually refuses eviction. In proceedings on the merits, however, persistently late payment can provide sufficient grounds even after the arrears have been cleared.
Serious nuisance, violence, intimidation, threats, leads to rescission where it is sufficiently serious and prolonged. This also applies to situations in which a tenant manages the commercial premises remotely and, as a result, structurally fails to address nuisance in time. Demonstrable improvement may, incidentally, lead the court to a different conclusion. Deviating use of the leased property (a different type of business than contractually agreed), unauthorised granting of use to third parties and the presence of drugs or a cannabis plantation are almost always regarded as serious breaches. In cases of nuisance, careful documentation on the part of the landlord is essential.
Overview: three routes to termination
In summary, lease law offers three main routes to terminate a lease of commercial premises:
Notice of termination, for Section 230a premises, not subject to formal requirements and without grounds; for Section 290 premises, by registered letter, with statutory grounds and a notice period of at least one year.
Rescission, for breach, through the court (proceedings on the merits). Applicable to both categories.
Eviction, as an interim measure in preliminary relief proceedings, or as part of the rescission claim. For Section 230a premises, eviction protection of up to three years must be taken into account after termination.
Which route is most effective depends on the type of commercial premises, the nature of the dispute and the urgency. For Section 290 premises, the choice of the ground for termination in the notice of termination is decisive, grounds that are not stated are not assessed. For Section 230a premises, termination appears straightforward, but eviction protection can delay the actual departure by years. It should also be noted that tenants may be protected against termination on enforcement by a mortgagee, a letting clause does not automatically hold against tenants who predate the mortgage.
Defects in the leased property: the statutory defects regime
Alongside the rules on termination, lease law contains an extensive regime for defects in the leased property. The statutory defects regime of Sections 7:204 to 7:210 DCC offers tenants three remedies, repair, rent reduction and damages. For commercial premises, however, the standard ROZ models exclude two of the three.
What is a defect in lease law?
Section 7:204(2) DCC applies a deliberately broad definition. A defect is any state, characteristic or circumstance of the leased property that is not attributable to the tenant and as a result of which the thing does not provide the enjoyment that the tenant was entitled to expect, when entering into the agreement, of a well-maintained thing of the same kind.
In practice, this includes leaks, structural defects, defective installations and asbestos. The Supreme Court has interpreted the concept of "enjoyment" broadly: accessibility, ease of access and the appearance of the leased property and its immediate surroundings also fall within it (Supreme Court 27 April 2012, ECLI:NL:HR:2012:BV7337). In the case of a leak in commercial premises with sensitive equipment, computer-controlled machines that cannot withstand water, the defect is readily established (District Court Gelderland 2022, ECLI:NL:RBGEL:2022:454).
Not a defect: factual disturbance and government measures
Not every limitation of enjoyment of the leased property is a defect. Factual disturbance by third parties without any claim of right, traffic noise, nuisance from neighbours, attempted break-ins, falls outside the definition. An important exception applies where the landlord causes the disturbance himself, or where a fellow tenant of the same landlord causes nuisance and the landlord fails to intervene (Supreme Court 5 October 1990, ECLI:NL:HR:1990:AB9186, Sloots/Lazaroski).
Government measures of a general nature are likewise not a defect. In the COVID-19 judgment, the Supreme Court held that the mandatory closure of Section 290 premises during the pandemic does not qualify as a defect within the meaning of Section 7:204(2) DCC, the measures restricted the possibilities for operation but did not relate to the leased property itself (Supreme Court 24 December 2021, ECLI:NL:HR:2021:1974). The Supreme Court did recognise that the COVID-19 measures could constitute an unforeseen circumstance within the meaning of Section 6:258 DCC, with a 50/50 apportionment of the loss as the starting point.
Repair, rent reduction and damages
The defects regime gives the tenant three remedies:
Repair, under Section 7:206 DCC, the landlord is obliged to remedy defects at the tenant's request, unless repair is impossible or entails disproportionate costs. If the landlord fails to do so, the tenant may remedy the defect himself and set off the costs against the rent.
Rent reduction, Section 7:207 DCC gives the tenant the right to a reduction of the rent proportionate to the reduced enjoyment of the leased property, from the moment of notification until the defect is remedied.
Damages, Section 7:208 DCC obliges the landlord to pay damages if the defect arose after the lease was entered into and is attributable to him, or if the defect was present at the outset and the landlord knew of it or ought to have known of it.
The ROZ exclusion and the mandatory minimum
For commercial premises, both Section 230a premises and Section 290 premises, the defects regime is non-mandatory law. The parties may deviate from it by contract. The standard ROZ models consistently do so: rent reduction (Section 7:207 DCC) and damages (Section 7:208 DCC) are excluded in the general provisions. Only the repair obligation of Section 7:206 DCC largely remains intact.
The consequence: a tenant with a ROZ contract who suffers nuisance for months from a leaking roof can claim repair but has no right to a rent reduction for the period during which the roof leaked, nor to compensation for consequential loss.
The contractual exclusion has a statutory limit. Section 7:209 DCC provides that Sections 7:206, 7:207 and 7:208 DCC cannot be deviated from to the tenant's detriment in so far as the defects concerned are ones the landlord knew of, or ought to have known of, when entering into the agreement. More concretely: if the landlord knew when signing the lease that the roof was leaking, or could have discovered this on a proper inspection, the ROZ exclusion does not operate. The tenant then retains his statutory rights, regardless of what the general provisions prescribe. In addition, the court may disapply a contractual exclusion if it is unacceptable according to the standards of reasonableness and fairness (Section 6:248(2) DCC).
Service charges for commercial premises
Whereas the defects regime has a clear statutory framework that can be excluded by contract, the service-charge landscape for commercial premises is the reverse: the law is silent and the contract determines everything. Section 7:259 DCC, the central provision on service charges, sits in the division on residential accommodation and does not apply to commercial premises. That means: no statutory duty to itemise, no statutory settlement period, no access to the Rent Tribunal.
For commercial premises, the parties determine in the contract which services count as service charges, how high the advance payments are, which allocation key is used and when settlement takes place. The limits lie in Section 6:248 DCC (reasonableness and fairness) and, specifically for Section 290 premises, Section 7:264 DCC, which renders clauses void in so far as they agree an unreasonable advantage.
The ROZ models as the de facto standard
Because the law is silent, the ROZ models (Raad voor Onroerende Zaken, the Dutch Real Estate Council) fill the vacuum. The ROZ 2012/2015 model for office space requires the landlord to provide an itemised statement each year setting out the method of calculation and the tenant's share, within twelve months of the end of the service-charge year. The allocation key follows actual costs where these are measurable (individual meters) and objective criteria where measurement is not possible, usually by floor area. An administration surcharge of five per cent on the service charges is in line with the market.
In practice, six recurring points of dispute arise in relation to service charges.
Maintenance versus service charges
Structural (casco) maintenance and the replacement of installations are among the landlord's obligations and may not be passed on as service charges. The dividing line: day-to-day maintenance and management (service charges) versus major maintenance and replacement (landlord). In owners'-association (VvE) situations, the demarcation is similar: costs for owner's obligations (structure, building insurance) cannot be passed on, whereas costs for use and services (cleaning, security) can.
Vacancy costs
The costs of vacant units may not be apportioned to the other tenants. A tenant's share may not be higher during vacancy than at full occupancy, vacancy is the landlord's business risk (Court of Appeal Amsterdam 14 December 2010, ECLI:NL:GHAMS:2010:BP0589).
Absence of an itemised statement
Without a proper itemised statement, the tenant can dispute the settlement and claim full repayment of the advance payments. All costs must be verifiable. On grounds of reasonableness and fairness, the tenant is entitled to inspect the underlying books and records, even without a statutory basis.
Change to the allocation key and settlement system
Unilaterally changing the settlement system, for example, from annual retrospective settlement to monthly invoicing, requires the tenant's individual written consent (District Court Gelderland 2025, ECLI:NL:RBGEL:2025:731). In the same case, a change to the allocation key itself, from equal shares to turnover-related shares, was permitted, provided the result was reasonable. Payment without objection may imply tacit acceptance of a changed allocation key (Court of Appeal Amsterdam 2009, ECLI:NL:GHAMS:2009:BP6652; upheld in Supreme Court 2011, ECLI:NL:HR:2011:BR3085).
Retroactive charging
Costs that have not been charged for years may not simply be passed on retroactively. In an interim judgment the Court of Appeal Amsterdam did not allow the retroactive charging of an additional fire-insurance premium as a matter of course. Under the ROZ terms that premium falls not under service charges but under a separate category (taxes, levies and premiums); the block was moreover fact-specific, because the tenant had not been informed in time (Court of Appeal Amsterdam 2015, ECLI:NL:GHAMS:2015:5394). From the moment of first invoicing, the premium was payable, provided it was supported by verifiable evidence.
Unreasonable costs
The landlord has a duty of care in respect of the level of costs. Indifference to the prices of external service providers is insufficient, competing quotes are expected. Fixed amounts that structurally exceed the actual costs are open to challenge, even in the free (unregulated) sector. A mistake as to future cost increases is not upheld: the Court of Appeal Arnhem-Leeuwarden rejected a plea of mistake when service charges rose from €38,748 to €109,368 per year (Court of Appeal Arnhem-Leeuwarden 2019, ECLI:NL:GHARL:2019:2954).
Overview: termination, defects and service charges
Lease law for commercial premises involves three main themes that often come together in practice: termination, defects and service charges. Termination turns on the distinction between Section 230a premises (not subject to formal requirements, but with eviction protection of up to three years) and Section 290 premises (exhaustive grounds for termination, a minimum of ten years). For defects, the contract determines more than the law does, the ROZ excludes rent reduction and damages, but the mandatory minimum of Section 7:209 DCC protects the tenant in the case of defects the landlord knew of. For service charges, any statutory regime is absent and everything turns on what the parties agree.
For tenants, it is essential to record the state of the leased property at the start of the lease and to assess the service-charge clause critically. For landlords, a security deposit or a broad service-charge clause does not release them from the obligation to itemise and substantiate the costs.
Frequently asked questions
What is the difference between Section 230a and Section 290 premises?
Premises under Section 7:230a DCC include offices, warehouses and professional practice spaces. The tenant has no security of tenure but does have eviction protection. Section 7:290 DCC applies to shops, hospitality venues and hotels, there the tenant enjoys extensive security of tenure and the landlord can terminate only on statutory grounds.
Can a landlord of Section 290 premises terminate in order to obtain a higher rent?
Not through the termination procedure. The wish to let to a new tenant at a higher price is not a valid ground for termination and does not count in the weighing of interests. A separate procedure exists for rent adjustment under Section 7:303 DCC.
How many months of rent arrears justify rescission?
In the case law, arrears of three months or more are regarded as sufficient grounds for rescission and eviction, unless special circumstances put the breach into perspective. If the arrears are cleared before the hearing, this often leads to dismissal in preliminary relief proceedings, but in proceedings on the merits persistently late payment can independently justify rescission.
Can a tenant with ROZ terms still claim a rent reduction for defects?
Only if the defect was already present when the lease was entered into and the landlord knew of it or ought to have known of it (Section 7:209 DCC). For defects arising later of which the landlord was unaware, the ROZ exclusion bars the claim, unless the court finds the exclusion unacceptable on grounds of reasonableness and fairness.
Is a government closure due to COVID-19 a defect?
No. The Supreme Court held in December 2021 that the mandatory closure of Section 290 premises is not a defect within the meaning of Section 7:204(2) DCC. The COVID-19 measures may, however, constitute an unforeseen circumstance, with a 50/50 apportionment of the loss as the starting point.
May the landlord pass vacancy costs on to the other tenants?
In principle, no. A tenant's share of the service charges may not be higher during vacancy than at full occupancy. Vacancy is the landlord's business risk. Contractual clauses that shift vacancy costs onto the tenant are open to challenge on grounds of reasonableness and fairness.
Supreme Court 20 December 2019, ECLI:NL:HR:2019:2034.