Reinier advises national and international companies
reinier.russell@russell.nl +31 20 301 55 55What should you bear in mind if you want to change the rent for your business premises? When are you allowed to adjust the price yourself? And in which cases do you have to go to court?
Once the rent for business premises has been set, this does not mean that it is set in stone. The rent can be adjusted in various ways, both by the tenant and the landlord. The rent can also fluctuate from year to year, for example because it is dependent on turnover. We explain these options below.
The rules for adjusting the rent for 290 business premises are laid down by law.
The basic principle is that the parties are free to determine the rent by mutual agreement. As professional parties, they are also responsible for this. However, if they cannot agree on a reasonable rent, they can go to court. To do so, they must meet a number of conditions. Not only must the parties wait until the lease term has expired or until five years have passed since the amount of the rent was established, but they must also submit an expert opinion when initiating the proceedings, showing that the rent is no longer in line with market conditions.
The law contains a provision for appointing the expert(s) in the event that the parties cannot agree on the appointment. When determining the rent, the court will take into account the average rent for comparable business premises in the area. In doing so, the court will look at the rents for the five years prior to the date on which the claim was filed. This further determination by the court is particularly relevant if rents are rising faster than inflation, on which annual indexation of the rent is usually based.
If the court further determines the rent, this new rent will apply from the date on which it was claimed, unless the court determines a different effective date based on the special circumstances of the case. The court may also determine that the rent will be gradually adjusted over a period of up to five years.
There is no statutory regulation for determining the rent for 230a business premises. It is therefore very important to carefully consider the amount of the rent and whether and how the rent is indexed annually when entering into the lease agreement. There are two different options for determining the indexed rent: year-on-year (a comparison with the previous year) and fixed denominator (a comparison with the starting year of the lease). If no indexation has been agreed, the landlord will have to renegotiate with the tenant each time.
There is a regulation for determining the usage fee for the rented property during the period of eviction protection. This is the period during which the lease has been terminated by the landlord, but during which the tenant is still allowed to use the rented property because he does not agree with the termination. A tenant is entitled to two months of eviction protection after the eviction has been announced and can apply to the court for an extension of this period for up to three years.
During the eviction protection period, the usage fee is determined by the court if the parties cannot reach an agreement. The court determines this “at a reasonable amount, given the local rent level”. No appeal can be lodged against this. Incidentally, it is not possible to have the court determine a usage fee if the eviction protection period is not extended.
For 290 and 230a commercial premises, in addition to the above-mentioned ways of adjusting the rent, the following options are also available.
The landlord is obliged to remedy defects at the tenant’s request, unless this is (financially) impossible. If the landlord does not remedy the defects, the tenant can do so himself and recover the costs incurred from the landlord, if desired by deducting them from the rent. This cannot be ruled out in the rental contract.
If the landlord does not remedy the defects, the tenant can also claim a reduction in the rent from the court in proportion to the reduction in the enjoyment of the property. The new rent takes effect on the day the tenant informs the landlord of the defect or the day the landlord became aware of the defect and the need to repair it. The adjusted rent remains in force until the landlord has remedied the defect.
For all commercial premises, the landlord may pass on to the tenant the costs of energy-saving measures installed by the landlord. This does not require legal action. If the tenants do not agree with the increase, they will have to take legal action.
Turnover rent is a form of rent whereby the rent (in whole or in part) is determined on the basis of the turnover achieved by the tenant in the rented property. Because turnover fluctuates, the rent also fluctuates. Instead of paying a fixed rent, the rent consists of a base amount plus a percentage of the gross turnover. This arrangement is particularly common in the retail sector and offers both the tenant and the landlord the opportunity to distribute risks and returns more fairly.
Do you own or rent business premises and would you like advice on the lease agreement, rental prices or lease terms? Are you in dispute with your tenant or landlord? Then contact one of our specialists:
In principle, a continuing performance agreement can always be terminated, even if no arrangements have been made in this regard. But you can’t just do it. What do you need to take into account when terminating the agreement? And what if you want to deviate from the agreements made about terminating the agreement?
On 28 June 2025, the European Accessibility Act will come into force. From that data, digital products and services must also be accessible to people with disabilities. Which companies, products and services does the Act apply to? What disabilities should you take into account? What are the consequences of not complying with the Act?
If a contract has ended, there may still be obligations you want your contract partner to fulfil, such as warranties or confidentiality. You can regulate this through survival clauses. What should you look out for when including such clauses?
The franchise agreement and the distribution agreement are very similar, but there are also important differences. What are the consequences if you conclude a franchise agreement when it is actually a distribution agreement or vice versa? How can you avoid this misunderstanding?
With the Dutch Tax and Customs Administration again enforcing the Deregulation of Assessment of Employment Relationships Act (DBA Act), these questions have become even more important. In a recent ruling on Uber drivers, the Supreme Court provided additional guidance on how to determine whether someone is a self-employed person.
The use of general terms and conditions is something companies can no longer do without. Contracting parties refer to their own general terms and conditions in small print, often containing favorable clauses for their own benefit. But what is the power of general terms and conditions? And what should be considered when using them?
