Classifying commercial premises: storage or shop?
Car dealership loses premises after termination as Section 7:230a commercial premises
A tenant has operated a car business for more than twenty years in leased commercial premises in Rotterdam. When the new landlords terminate the lease, the tenant argues that the premises qualify as Section 7:290 commercial premises, with the associated protection against termination. The court of appeal upholds the subdistrict court's judgment: the termination is valid.
The 2002 lease expressly states in its heading "not pursuant to Section 7A:1624 (old) DCC" (now Section 7:290 DCC). The designated-use clause limits use to "storage/showroom space for motor vehicles". Repairs, damage repair and the storage of environmentally hazardous substances are expressly prohibited. The contract says nothing about the sale of cars.
The tenant argues that he sold cars from the premises from the outset, with the landlord's knowledge. He submits statements from a customer, a neighbour and a local resident confirming that car sales took place. In 2013 the landlord even wrote: "we have always allowed you to sell cars from the very beginning."
Court of appeal: tolerating use is not consent to a change of designated use
The court of appeal construes the lease by reference to its wording, its formation and the fit-out of the premises. The contract wording points unambiguously to a Section 7:230a designation. The heading expressly excludes Section 7:290 commercial premises. The word "sale" or "car trade" appears nowhere. The original landlord states in writing that storage was the intention and refuses to sign a statement to the contrary.
The key point is the 2013 letter in which the landlord writes that car sales had been "allowed". The court of appeal reads this as a policy of toleration: the addition "so that you could pay the rent more easily" makes clear that it was not a change of designated use. Actual different use does not automatically shift the rental regime. That requires both parties to consent to a change of designated use. Passivity or toleration is insufficient, particularly where the contract requires written consent for a change of designated use.
For completeness, the court of appeal considers that even in the case of a dual designation, predominant use is decisive. The tenant does not substantiate that the premises were predominantly used for sales: no sales invoices, no advertisements bearing the address, and the Chamber of Commerce registration lists sales only for other establishments.
What lessons follow from this judgment for tenants and landlords?
This judgment underscores the importance of the contract wording in classifying commercial premises. A tenant who carries on an activity for years that differs from what was contractually agreed cannot derive rental protection from it as long as the landlord has not actively consented to a change of designated use. Landlords who tolerate different use would do well to limit that toleration in writing. A carelessly drafted letter can complicate the discussion unnecessarily.
For tenants who believe their premises fall under the Section 7:290 regime, the sales designation should be documented at the start of the lease. Proving after the fact that the premises were predominantly used for sales is a heavy burden of proof, as this judgment shows. See also the page Real Estate & Construction and the earlier publication on penalty clauses in leases.
Frequently asked questions
What is the difference between Section 7:290 and Section 7:230a commercial premises?
Section 7:290 DCC protects tenants of commercial premises intended for retail, hospitality or crafts with a space accessible to the public. The tenant enjoys extensive protection against termination. Section 7:230a DCC applies to all other commercial premises, such as offices, storage space and parking/storage space, where protection is limited to protection against eviction.
Can actual use for sales change the rental regime?
Not automatically. A shift in the rental regime requires both parties to consent to the change of designated use. Mere toleration or passivity by the landlord is insufficient, particularly where the contract contains a written-form requirement for a change of designated use. Implied consent is not ruled out, but cannot readily be assumed where it would alter the regime to the landlord's disadvantage.
How is predominant use established in the case of a mixed designation?
In the case of commercial premises with a dual designation, what is decisive is the purpose for which the premises are predominantly used. That requires concrete indications: sales invoices, advertisements bearing the address, and a fit-out that points to sales. An accountant's statement about the company's total turnover is insufficient if it is not established which premises generated that turnover.
ECLI:NL:GHDHA:2025:1854, The Hague Court of Appeal, 2 September 2025
Cited case law
Courts of Appeal: ECLI:NL:GHDHA:2025:1854