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Sublease of ‘other business space’
Two types of business premises
There are two types of business premises: with and without rent protection. Rent protection accrues to a retail business, such as a restaurant. There is also rent protection if the leased business premises contain a room for direct delivery of movable goods or services, such as a hotel. The legal regulation on business premises with rent protection can be found in Sections 7:290 and onwards of the Civil Code. In addition, there are other business premises, where there is no rent protection, called other business premises or 230a premises.
The 230a space
By a 230a space or other business premises, one can think of offices, sheds etc. There are very many such ‘other business premises’ and in principle, the lease ends when notice is given, for example, towards the end of the lease. Eviction must also be given notice in the notice. The limitative grounds for termination of the ‘290 space’ do not apply. What does apply is the eviction protection of Section 7230a of the Civil Code. To properly describe the situation of the subtenant of ‘other business premises’, the eviction protection will be reviewed first.
Eviction protection
Eviction protection is temporary eviction protection. The eviction protection lasts in principle 2 months. The tenant can request the subdistrict court to extend the period within which eviction must take place. To do so, the tenant must submit an application to the subdistrict court. This must be submitted within 2 months of the time against which eviction has been announced. The tenant is not entitled to eviction protection if the tenant himself has terminated the tenancy, expressly agreed to the termination, or has been convicted by the court for non-compliance with his obligations.
During the period of eviction protection, the tenant does not owe the landlord rent, but “reasonable compensation”. In practice, this compensation is usually equal to the most recent monthly rent. In case of disagreement about (the amount of) that compensation, the court can be asked in proceedings to determine compensation.
In practice, it can often take months before the oral hearing takes place. After that court hearing, it can still take several months before the judge makes a decision. All this time, the tenant’s eviction obligation is not final!
When the subdistrict court weighs up the interests, all relevant facts and circumstances are considered. The landlord’s interests usually take precedence. If the tenant’s interests are more seriously affected by the eviction than the landlord’s interests in continuing the use, the court will still grant the request for an extension. Experience shows that the court predominantly gives the tenant the benefit of the doubt if the tenant can properly substantiate his substantial interests in continuing the use of the space in question. The court will then extend the period within which eviction will have to take place. This extension can be granted for a maximum of one year. This extension can take place a maximum of two times thereafter. Practice shows, however, that with a second and third request by the tenant, it is more difficult to convince the judge that the tenant’s interests are more seriously harmed than those of the landlord.
If the court rejects the tenant’s request, it immediately sets the date of eviction. An appeal is not possible!
Sublease
A complicating factor are sublet situations. Very often there are constructions in which the owner rents out and the tenant sublets (parts). Of course, it is very important that the subtenant has the term of the sublease end at the same time as that of his own lease. Now what if the landlord terminates the lease. What can the subtenant himself do to secure his position? Strangely enough, the subtenant cannot invoke eviction protection himself.
The reason for this is that a subtenant cannot file a request under Section 7:230a of the DCC against the subtenant. Section 7:230a (4) of the DCC expressly provides that this right belongs to the tenant and that in the request submitted by a tenant, the interests of the subtenant will be expressly taken into account. This wording already shows that the subtenant does not have such a right of his own, and thus a procedural interest.
The subtenant would therefore be well advised to have the sublease agreement state that the sublandlord will make every effort to achieve eviction protection in a 7:230a BW petition and to ensure that the subtenant’s interests are given optimal consideration by the subdistrict court. If necessary, if the tenant does not make any move to invoke eviction protection, summary proceedings can be considered to force the tenant to act by means of penalty payments.
Tenancy situations are complex and bound by many deadlines and regulations. Therefore, get informed by the specialists in tenancy law and real estate law of Fruytier Lawyers in Business. We can also provide you with specific advice on leases of business premises in the event of bankruptcy and dissolution of lease in the event of structural non-payment.
