As reported in our November 2018 GT Amsterdam Law blog post, use of an office building without a minimum energy label C (an energy index of 1.3 or better) will be prohibited as of 1 January 2023.

In view of this prohibition in the Dutch Buildings Decree, the ROZ (Dutch Real Estate Council) has established a new sustainability/green lease provision for the ROZ model Office Space 2015. The new model clause allows the landlord and the tenant to draft agreements on how to comply with the Label C obligation for offices by the 2023 deadline. The clause urges both the landlord and the tenant to consider which energy-saving measures they want to implement and who will bear which costs.

The new model clause has two options: one for when the office building already meets the Label C requirement, the other for when the office building does not. In the first option, both the landlord and the tenant are responsible for choosing the most energy-saving measures in carrying out any maintenance, repair, or renewal to the leased property. In the second option, the landlord and the tenant must determine the necessary measures to meet Label C requirements and divide those responsibilities. Once the leased premises meet the Label C requirements, as in the first option, both the landlord and the tenant are responsible for choosing the most energy-saving measures for any maintenance, repair, or renewal to the leased property.

Furthermore, the new model clause contains language applicable to both situations. If the leased property requires additional energy-saving measures to comply with potential future legislation that is even better than Label C, the division of maintenance/repair/renewal responsibilities between the landlord and the tenant, as stated in Article 11 of the General Provisions, prescribes each party’s responsibility to contribute to the costs of such additional measures. Should the landlord and the tenant not come to an understanding of who takes on which part of the costs, the landlord is entitled to terminate the lease agreement with due observance of six months’ notice (!). The new model clause also addresses the situation in which the tenant has invested in energy-saving measures and how parties should deal with these measures at the end of the lease agreement.

Parties to office building lease agreements, particularly the tenants and the landlords in situations where the building does not comply with Label C, or future legislation prescribes further energy-saving measures more green/efficient than Label C, should pay careful attention to the current and future drafting and negotiation of lease agreements.