A lease agreement is defined in Article 7:201 of the Dutch Civil Code as an agreement whereby:
- the lessor undertakes to make a property—or part thereof—available for use by the lessee;
- and the lessee undertakes to provide consideration in return.
If an agreement meets this description, it is in principle classified as a lease agreement. Whether the parties actually intended to enter into a lease agreement is irrelevant.
Nevertheless, the question of whether a lease exists is not always easy to answer by simply testing the legal provision. An example is given in a recent ruling by the Supreme Court of 31 January 2025 (ECLI:NL:HR:2025:167). This case focused on how two settlement agreements relating to the use of social housing should be legally qualified.
Background
The tenant of a social housing property died. The tenant’s children (born in 1979 and 1987) were living with the tenant at the time of her death, but were not entitled to continue the lease on the basis of Article 7:268(2) of the Dutch Civil Code. The children therefore had no right to remain in the home and had to vacate it.
A settlement agreement was concluded between the children and the landlord, in which it was agreed, in short, that the children would be given the opportunity to continue living in the home temporarily until they had found alternative accommodation. To do so, they had to pay a usage fee equal to the rent. An end date was also agreed.
This end date was extended once in a second settlement agreement. It was agreed that no further extensions would be possible and that the children were obliged to actively search for alternative accommodation.
After the agreed end date, the children refused to leave the house. This led to a legal dispute about the nature of the agreement, with the landlord demanding eviction from the house. Were the settlement agreements concluded to be regarded as rental agreements, such that the children could invoke rent protection?
The subdistrict court judge was of the opinion that this was a tenancy. The court of appeal took a different view, referring to the Inscharingsarrest (Supreme Court, December 20, 2019, ECLI:NL:HR:2019:2034) and the Timeshare-arrest (Supreme Court, February 11, 2011, ECLI:NL:HR:2011:BO9673). There was no lease and the court ordered the children to vacate the property.
Supreme Court: interpretation may lead to an exception in the qualification
The case was then brought before the Supreme Court. The children argued that if the content of an agreement meets the legal definition of rent in Section 7:201 of the Dutch Civil Code, that agreement must also be qualified as such. In their view, the Timeshare judgment was outdated.
The Supreme Court stated that when assessing whether an agreement should be classified as a lease agreement, the content of the agreements between the parties must first be examined. That is the interpretation of the agreements made. The interpretation is not limited to the literal description in the agreement. It is also necessary to take into account the meaning that the parties could reasonably attribute to the provisions of the agreement in the given circumstances and what they could reasonably expect from each other in that regard (Haviltex). Next, it must be assessed whether these agreements meet the legal requirements for leases, as laid down in Article 7:201 of the Dutch Civil Code. This is the qualification of the agreement.
Even if an agreement contains the elements of the legal definition of a lease, it may exceptionally be the case that, based on the interpretation of the agreements made, this agreement should not be qualified as a lease agreement. According to the Supreme Court, whether such an exception applies depends in part on the situation for which the parties wished to make an arrangement and whether a qualification other than a lease is consistent with the mandatory rent protection regime in that situation.
The situation of the children was that the landlord could demand eviction at short notice. In view of the disadvantage associated with eviction, the Supreme Court considers it desirable that the landlord has the option of extending the eviction period in return for payment without being subject to rent protection.
The Supreme Court noted that in cases of death, the legal position of co-residents is sufficiently protected by Article 7:268(2) of the Dutch Civil Code. That article regulates the continuation of the lease after death in the case of a joint household. However, the children did not invoke this provision, either prior to or during the proceedings. Therefore, when qualifying the settlement agreements, it could be assumed that the children would have to leave the house in the short term.
In such a situation, an agreement to postpone eviction is therefore in the children’s best interests. In this way, the landlord is accommodating the children. Taking this into account, according to the Supreme Court, the mandatory rent protection regime does not preclude a classification other than rent.
The Supreme Court ruled that this was an exceptional situation. The agreements concluded between the landlord and the children are not classified as rental agreements. This means that the children cannot invoke rent protection and must vacate the property.
Conclusion
It follows from this ruling that the classification of a lease cannot simply be based on testing an agreement against the legal definition. The interpretation of the agreements may lead to an exception to the classification. In certain situations, for example, it is possible to agree on a postponement of the eviction date in exchange for payment of a usage fee, without this constituting a tenancy with the associated protection. This provides room for maneuver during negotiations between landlords and residents about the eviction date. In order to prevent disputes in this regard, it is important that both during the negotiations and in the agreement, it is clearly stated for which situation the parties are making an agreement. It must also be taken into account whether a qualification other than a lease is compatible with the mandatory rent protection regime in that situation.
For more advice on this subject, please contact Désirée Dexters or another tenancy law specialist at Paulussen Advocaten. They can be reached by telephone on 043 321 6640. Appointments can be made both on location and at our offices in Maastricht and Heerlen.
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