Netherlands Commercial Lease: ROZ Model & Key Provisions

Commercial leases in the Netherlands are divided into two distinct legal regimes governed by Book 7, Title 4 of the Dutch Civil Code (Burgerlijk Wetboek), which came into effect on 1 August 2003. These regimes are Art. 7:290 BW (Retail/Hospitality) and Art. 7:230a BW (Offices/Industrial). While freedom of contract is broad, retail tenants enjoy significant statutory protection regarding lease duration.

The ROZ Model Standard

The ROZ (Council for Real Estate Affairs) models are the industry standard for Dutch commercial leases. Using these models ensures that the contract aligns with the latest case law and market practices.

• 7:290 BW Retail Model: Used for shops, restaurants, and bars. Includes Indeplaatsstellingsrecht (right of substitution).
• 7:230a BW Office Model: Used for offices, factories, and warehouses. Focuses on contractual flexibility.
• General Conditions: Each model is accompanied by a set of General Conditions that form an integral part of the lease.

Form and Registration

• Written Form: While a verbal commercial lease can be legally binding, a written contract is essential to prove the specific terms (e.g., VAT options, maintenance allocation). For 7:290 BW retail leases, any contractual deviation detrimental to the tenant (e.g., shorter terms or waiving renewal rights) is null and void unless the Subdistrict Court (Kantonrechter) has granted prior approval for such deviation under Art. 7:291 BW.
• Registration: Commercial leases do not require registration in the public records (Kadaster). Under the principle 'koop breekt geen huur' (Art. 7:226 BW), the lease agreement automatically transfers to the new owner upon sale of the property, protecting the tenant's rights without the need for registration.

Mandatory & Core Provisions

Every commercial lease should explicitly define:

• Type of Premises: Explicitly state if the property falls under 7:290 BW or 7:230a BW.
• Permitted Use: Very narrow definitions are recommended to prevent "use creep" or unauthorized subletting.
• Duration:
  • Retail (290): Mandatory duration is 5 years + 5 years. Under Art. 7:301 BW, a lease may be concluded for a maximum of 2 years without court approval. If the use continues beyond 2 years, the lease automatically converts into a 5+5 year term, where the initial 2 years are counted towards the first 5-year period.
  • Office (230a): No statutory minimum. Fixed terms (e.g., 1 year) or indefinite terms are common.
• VAT Option (BTW): Rent is VAT-exempt by default. To charge VAT (enabling the landlord to recover construction/maintenance VAT), both parties must "opt" for a taxed lease in the contract.
• Bank Guarantee: Usually 3 months of rent + service charges + VAT.

Substitution Right (Indeplaatsstelling)

Specific to 7:290 BW (Retail): A tenant selling their business may demand the landlord's cooperation in transferring the lease to the buyer under Art. 7:307 BW. If the landlord refuses, the tenant may petition the court. The court will grant the request if the tenant demonstrates a 'weighty interest' (zwaarwichtig belang) and the buyer provides sufficient guarantees for compliance with the lease.

Substantiating Reasons (230a Properties)

For 7:230a properties (offices), the tenant has a mandatory 2-month window to apply for "eviction protection" from the Subdistrict Court (Kantonrechter), starting from the date for which eviction was notified (aanzegging). The court may extend this protection for up to one year, and this extension can be renewed twice for a total maximum of 3 years. The landlord must provide substantiating reasons why the eviction should proceed, which the judge will balance against the tenant's interest.

Best Practices for Landlords

1. Always use the latest ROZ model — Avoid old versions as they may not reflect recent Supreme Court rulings on indexation or VAT.
2. Verify VAT Status — Ensure the tenant uses the property for at least 90% VAT-taxable activities before opting for a taxed lease.
3. Draft a detailed Delivery Report — Attach photos and a signed status report (Process-Verbaal van Oplevering) to avoid disputes over the "as-is" condition at lease end.
4. Specify Service Charges — Clearly list what is included (utilities, glass washing, green maintenance) to prevent annual settlement disputes.

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