Rental contracts can be a minefield, especially if you are new to the Netherlands and not sure what you are getting into. GMW lawyer Marie-Christine Veltkamp-van Paassen looks at what can happen in practice, and how judges deal with three common scenarios.

Tenancy agreements can be extremely complex and there are all sorts of pitfalls to watch out for. We looked at these in some detail in an earlier article. But what about the different types of lease? There are three basic rental agreements in the Netherlands, each with their own peculiarities.

1 An open-ended lease

• Tenant can always terminate, unless a minimum term has been agreed
• Landlord can only terminate with a legal ground for termination

2 A fixed-term lease of two years or less

• Tenant can always give notice
• Landlord only needs to send a note that the tenancy is ending. This must be received no earlier than 3 months and no later than 1 month before the end of the tenancy

3 A fixed-term lease of more than two years

• Termination is possible for both parties only towards the end of the agreed term
• Landlord can only terminate with a legal ground for termination

Note: If you are renewing a fixed-term lease, it automatically becomes an open-ended one by law. Your landlord cannot give you a second two-year contract, for example.

So what do these different lease types mean to the landlord and the tenant? Here are three cases, all of which came to court, and a summary of how judges dealt with them.

Case 1: The jovial estate agent

In ECLI:NL:RBNHO:2020:973, the rental contract stated: ‘the lease ends after a maximum of 12 months and will continue if no notice of termination follows’ . The landlord wrote a timely note that the tenancy would end, and went to court to try to have the tenant evicted.

However, the tenant took the position that it was an open-ended contract. After all, at the start of the lease, the estate agent had said that the lease could be extended if everything went well.

The court granted the eviction, saying the estate agent’s communications were not a guarantee of renewal, and moreover, the court said a simple communication from an estate agent cannot lead to an agreement. After all, the estate agent is only the landlord’s representative and not his proxy.

So always pay close attention to what the contract says, and don’t be blinded by talk!

Case 2: Landlord terminates lease two days too early

ECLI:NL:GHARL:2022:1345 involved a rental contract of less than two years. However, the landlord sent the end-of-tenancy notice two days too early and then the tenant did not want to vacate.

The court dismissed the claim for eviction on the grounds that the too-early notice  could no longer be considered. But the appeal court granted the eviction on the grounds of reasonableness and fairness.

Factors that played a role here are the fact that two days is not a significant length of time, the landlord was not a professional landlord, the landlord had entered into the lease to help the tenant, the rent was not commercial, and the landlord demonstrably needed the house in order to live there himself.

In principle, therefore, the landlord must comply with the prescribed period for giving notice of the end of the tenancy. However, special circumstances can be taken into account order to invoke reasonableness and fairness.

Case 3: The lease has a diplomatic clause

In ECLI:NL:RBNHO:2021:7050, the landlord and tenant had included a diplomatic clause for the landlord as a legal ground for termination. The rental agreement stated that the lease was for one year and could not be terminated early.

If the landlord needed the leased property for himself again after a year, he could terminate the lease on that ground and the tenant would have to vacate the property. If not, the parties could agree on a new lease. This description meets the legal requirements for the landlord’s diplomatic clause.

The tenant wanted to terminate the lease after just a few months, and took the position that this was allowed because the contract was effectively a fixed-term lease of two years or less. He therefore believed that the clause in the lease prohibiting early termination was null and void.

However, the court ruled that the descriptions in the lease clearly indicate that the two sides intended to enter into an agreement in which the landlord’s diplomatic clause was the legal ground for termination. The lease was not, then, a regular fixed-term lease of two years or less, and tenant was ordered to pay the rent up to the end of the contract term.

So be aware that in the case of a lease with a diplomatic clause, you cannot, in principle, end the contract early.

Would you like to know more about your rental contract and your legal position? The real estate section at GMW lawyers will be happy to help.