The Dutch Real Estate Council of the Netherlands (ROZ) adopted a new template lease agreement for retail space leasing at the end of 2022, updating the 2012 version. Several aspects were amended, including various clauses relating to green leases and sustainability.
Lease agreements in the Netherlands often are based on one of the templates drawn up and governed by the general terms and conditions of the ROZ, the Netherlands’ preeminent real estate organization which, among other things, draws up template lease agreements for various types of real estate.
The template adopted in December 2022 is intended for the lease of retail space and other business premises, including hotels, restaurants, and retail space, which meet the legal requirements stated in article 7:290 paragraph 2 of the Dutch Civil Code (DCC).
Green Lease and Sustainability
The new template includes the obligations of both landlord and tenant outlined in the Dutch Activities (Environmental Management) Decree (Activiteitenbesluit milieubeheer) and provides for any other mandatory sustainability measures. In addition, the template recommends that parties discuss additional sustainability measures. To aid these discussions, the ROZ created a ‘sustainability matrix’ with agreements parties can make regarding sustainability. This matrix is intended to serve as inspiration and can be amended, supplemented and/or concretized by the parties.
Water and energy consumption
A new optional provision allows the tenant to provide the landlord (or both parties may provide each other) with data on energy and water consumption in an effort to increase awareness of energy use and thus reduce consumption.
The ROZ may also adopt these green changes in other templates, including the template for office space adopted in 2015.
Hours of operation
On 1 January 2022, a change in the Trading Hours Act took effect, requiring a shopkeeper’s explicit consent to change their shop’s hours of operation. This prevents someone other than the shopkeeper, such as the landlord, an owners’ association, or a shopkeepers’ association, from deciding on hours of operation without the shopkeeper’s consent. The new ROZ template includes a provision that addresses this change.
Government measures in response to the COVID-19 pandemic have restricted the use of leased property for many retail tenants. According to the Dutch Supreme Court, such a restriction due to government measures does not constitute a defect within the meaning of Dutch law (ECLI:NL:HR:2021:1974). Nevertheless, the ROZ states it is reasonable for parties to enter consultations with each other when the use of the leased property is substantially restricted by government measures in such a way that unaltered maintenance of the agreement is contrary to the principles of reasonableness and fairness. However, if parties have not agreed otherwise, the tenant’s payment obligation under the lease will remain unchanged.
The processing (collecting, using, saving, etc.) of personal data is permitted when necessary for the performance of the lease. The processor of personal data must disclose information (i.e., which personal data is used, why it is used, to whom this data is passed on, and own company name and address). The general provisions include some of the most common uses of personal data with regard to the performance of a lease (maintenance, payment, sales, etc.). Where the landlord’s privacy statement provides for other or additional purposes for the processing of a tenant’s personal data, the optional provision “Personal Data” with the location of the relevant privacy statement should be included in the lease agreement.
An electronic signature, as described in article 3:15a of the DCC, is legally valid, even if the parties have not agreed on this signature method. Parties may explicitly agree to use electronic signatures in the lease agreement if they wish, and thus can include the optional provision “Electronic signature.”
Parties may also send each other a scan of a signed lease. To prevent a party from invoking a non-legal signature in these instances, the provision also allows parties to accept this manner of signing as legally valid.