Notarized deed at end of lease: an enforceable title as security

It is common for the tenant and landlord to disagree about the end of the lease. Under Dutch law, the tenant is usually entitled to robust protection. For example, tenants cannot simply be evicted.

Sometimes it is possible to make arrangements with a tenant. For example, that the tenant may stay put for another year at a reduced rate and then leave voluntarily. However, if the tenant does stay put, in principle, the tenant will still have to go to court to secure eviction from the leased property.

For this reason, it is a smart move to record the agreements between tenant and landlord in a notarized deed. In this article, I briefly explain what this option entails and what to consider.

The grosse of a notarized deed

A notarial deed is an official document prepared by a notary public. The deed has special legal force and is also referred to as an authentic act. A grosse is a copy of the notarial deed that the notary can issue above which the words “In the name of the King” are noted.

Article 430 Rv

The main advantage of recording the agreement on eviction is that Article 430 of the Dutch Code of Judicial Procedure provides that, in addition to a court judgment, the grosse of an authentic instrument can be enforced, for example, in an eviction.

Recording agreements in a notarized deed can therefore be attractive to landlords who want certainty about the tenant’s compliance with an eviction obligation. This means that the step to court can be skipped. The rough draft of the deed can go directly to the bailiff, who, if necessary, will use the strong arm of the law to evict the tenant.

When can it be done?

When the lease is already in place, an eviction clause can be recorded as part of a termination agreement by mutual consent, i.e., as part of an amicable settlement. This is the most important category.

Under certain circumstances, an eviction clause may be included as early as the conclusion of the lease, such as:

• When leasing undeveloped real estate (such as space on a trailer park, parking lots);
• If the contract is based on Section 7:301 of the Dutch Civil Code, in brief, the lease of business premises 2 years or less; and
• When the subdistrict court has granted approval pursuant to Article 7:291(2) DCC.

It is essential that the clause does not violate the semi-mandatory provisions of rent protection (in the sense that a deviation of the law is not allowed i fit deviates in a way that detracts from the rights of the tenant). If it does, the tenant can have the clause annulled.

Execution dispute by

Although a notarized deed provides a strong legal basis, the tenant still has the option of filing a foreclosure lawsuit to stop the eviction. This can be the case, for example, when the tenant invokes the voidability of the eviction clause. Such a dispute is usually adjudicated by the preliminary relief judge.

The court can intervene in the enforcement only if there is an abuse of enforcement power. This may be the case if the eviction clause is found to be legally or factually incorrect, for example, because it violates semi-mandatory law or if there is another compelling reason. In addition, the tenant may argue that the foreclosure is disproportionate and results in an emergency for the tenant. The court will weigh interests and may suspend or even strike the foreclosure if it appears that the tenant has a strong legal position that is likely to be upheld in proceedings on the merits.

It is important to realize that a foreclosure dispute is often the only opportunity for a tenant to raise substantive objections to the foreclosure. Therefore, it is essential for the landlord to act carefully and take into account possible tenant defenses.

Conclusion

A notarial deed can be a valuable tool for landlords when recording an eviction obligation as part of an amicable end to a lease. It provides the security of an enforceable title, making enforcement easier. Nevertheless, it is important to take into account rent protection rules and use the correct legal wording. By properly recording these agreements, landlords can save a lot of time and expense in the event of any conflicts with tenants.

Questions

Do you have questions about this mechanisme or have other legal questions about rental law? Our specialized attorneys will be happy to assist you. Please contact one of our lawyers by mail, phone or fill out the contact form for a free initial consultation. We are happy to think along with you.