Eviction protection: the trap of tenancy law

New year, new opportunities for your office property. At last, that complaining and for years underpaying tenant Stuck Tight B.V. is leaving as of 1 January 2024. You terminated the lease agreement - with due observance of the notice period - months ago and your estate agent enthusiastically started looking for a new tenant. He succeeded: on 1 February 2024, Golden Mountains B.V. will move into your property, giving you plenty of time in January to make the agreed changes and give the property a lick of paint. The contractor and painter have already been contracted and have reserved time for this in January.

However, it has now been 1 January 2024 and Stuck Tight is still there and refuses to leave. It claims to have no such obligation at all, but does not substantiate why. So what now? You have heard that there is a lot of freedom of contract when letting offices in the Netherlands. So, despite your timely notice, does Stuck Tight have any additional rights? Golden Mountains has been advised by an in-house lawyer to review and negotiate the draft lease, so Article 26 of the ROZ's general conditions (right to postpone making premises available if it is not yet ready) has been written away. Because of this, you could become liable for damages if the premises are not made available to Golden Mountains by 1 February 2024. And that can add up to a lot, because Golden Mountains has already terminated its own lease and a new tenant is ready to move into that property as well. Golden Mountains must therefore move out of its current premises by 1 February 2024. You turn to a lawyer, who tells you about eviction protection. Your enthusiastic estate agent had not thought of that.

What is going on here?

Eviction protection

The law gives tenants of so-called 230a premises (such as offices and logistics business premises) the right to request eviction protection from the subdistrict court. The two-month period for this starts from the date against which the notice of eviction has been given. So in this case, that eviction notice should have been given by 1 January 2024 (mere notice of termination is not sufficient). Until the end of February 2024, Stuck Tight therefore does not have to vacate. And if it has a petition filed by a lawyer with the subdistrict court before the expiry of the two-month period, it may also stay put during the proceedings. Such proceedings at the subdistrict court quickly take eight to 12 months. This can give Stuck Tight up to a year of eviction protection, which period has often already expired when the subdistrict court passes its order. But the risk does not stop there: in total, a tenant can get as much as three times a year of eviction protection, each time with separate court proceedings. Now, it is quite rare for a tenant to get a total of three years of eviction protection. It remains a weighing up of interests by the subdistrict court judge.

Lease termination and damages

But even if the subdistrict court rejects the eviction protection eventually, the consequences have already kicked in: you have lost your new tenant Golden Mountains. It has terminated its lease agreement with you and is now in the office building across the street, but has held you liable for the higher rent there and all of its moving costs. In fact, because your premises were not available in time, it had to rent a temporary office for a lot of money and also had to move twice. And the contractor and painter who were supposed to start working for you in January also want payment based on their contracts with you.

Summary proceedings as solution?

By initiating summary proceedings you could try to get Stuck Tight out of the property after all. There is an urgent interest: the interests of the new tenant will soon suffice. However, summary proceedings judges are very reluctant to grant eviction if a tenant can still claim eviction protection. After all, this is a statutory right, which cannot be derogated from by contract.

Increase of user fee as solution

Prevention is therefore better than cure, especially in this case. A possible solution could be the amount of the user fee which is to be paid by the reluctant tenant as of 1 January 2024 after a court order. Pursuant to the law, this should be a reasonable rent, which should correspond to the rent level on site. In situations where rent of nearby properties has risen sharply compared to the rent under the lease, this can sometimes result in the tenant leaving voluntarily after all. Rent law has several traps, which some (real estate) consultants and lawyers not specialised in rent law are not aware of. Eviction protection is one such example.

Timely preparation to reach desired results

Good and timely (legal) preparation is required to ensure a smooth transition to a new tenant. This sometimes starts as early as drafting the lease or an interim extension with the old tenant, but also when negotiating the lease with the new tenant. At all these stages, our tenancy law specialists are happy to look on with you. Then 2024 will actually start prosperously!