Netherlands Commercial Lease Requirements: ROZ Model and 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, a written contract is required to deviate from the statutory 5+5 year duration.
• Registration: Leases do not need to be registered in a public registry unless they are "Kwalitatieve verplichtingen" (qualitative obligations) or specifically requested by a lender.

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): Default is 5 years + 5 years. Any shorter term (e.g., 2 years) is strictly regulated and requires specific drafting to avoid being "converted" into a 5-year term.
  • 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): If a tenant sells their business, they have a legal right (under certain conditions) to demand that the buyer takes over the lease. The landlord can only refuse if the buyer's financial standing or professional capability is insufficient.

Substantiating Reasons (230a Properties)

For 7:230a properties (offices), the lease can be terminated with more ease, but the tenant has a 2-month window to request "eviction protection" from the Subdistrict Court (Kantonrechter). The landlord must provide substantiating reasons (redenen van belang) why the eviction should proceed, which the judge will balance against the tenant's interest in staying.

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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