NETHERLANDS Law and Practice Contributed by: Coco van Zuiden, Marijn Bodelier, Sabine Schoute and Simone Wijngaard, Greenberg Traurig, LLP
lease of immovable property that is not used as 290 business premises or as residential prem - ises is subject to the regime laid down in Section 7:230a, DCC (eg, office space and warehouses). The degree to which the lessee enjoys security of tenure varies depending on the regime appli - cable to the lease. 6.3 Regulation of Rents or Lease Terms For commercial leases, parties are free to agree on the rent. For the purposes of the rules on rent in the DCC, residential premises in the Netherlands fall into one of two categories: social housing and “lib - eralised” (private sector) housing. Leases of social housing are subject to detailed rules on, among other things, the factors to be taken into account when calculating the rent and the maximum amount of rent payable (a ceiling applies). In the case of private-sector housing, fewer rules apply and the lessee and lessor are free to agree Parties are free to draft their own contract, but in the Netherlands, lease contracts are often based on one of the templates drawn up by – and gov - erned by the general terms and conditions of – the Dutch Real Estate Council (ROZ). These templates, which are frequently used in the Netherlands, generally tend to favour the lessor. Standard lease terms are: • purpose of the lease; • designated use; • term; the rent and services provided. 6.4 Typical Terms of a Lease
• rent and payment terms; • service charges; • security; and • maintenance and repair obligations. 6.5 Rent Variation
Rent is usually subject to (an annual) indexation. Residential rent indexation may only take place once a year. Furthermore, in regulated residential properties the rent may be indexed by a maxi - mum percentage set by the government. Furthermore, the 290 business premises regime entitles each of the parties to a judicial rent review at the end of each lease term or, in the case of a lease for an indefinite period, five years after the last review took place. The review will be based on the rent paid for comparable prem - ises in the preceding five years and can there - fore lead to either an increase or a reduction in the rent. The application to the court must be accompanied by a report drawn up by one or more experts appointed jointly by the parties. If the parties are unable to agree on the expert(s) to be appointed, either party can request the court to appoint the expert(s). This statutory right to a rent review is mandatory law and therefore supersedes any contractual provisions, unless such provisions are approved by the court or deviate to the benefit of the lessee. 6.6 Determination of New Rent Indexation of rent is usually based on the con -
sumer price index (CPI). 6.7 Payment of VAT
Generally speaking, an option to tax letting and leasing is possible for all non-residential real estate (including rights in rem which are treated as a supply of services). The advantage of an option is that the lessor can recover input VAT
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