Following our earlier blog on the Opinion of the Advocate General at the Supreme Court regarding the question of whether the (potential) ability to obtain a higher rent constitutes an interest (within the meaning of Article 7:296(3) of the Dutch Civil Code) on the basis of which a lease agreement for 290-type commercial premises can be terminated, we now discuss the judgment of the Supreme Court.
This case concerned a lease agreement for a supermarket location that has been in effect for an indefinite period since 2019. The landlord wished to terminate the lease because a third party was willing to pay a significantly higher rent than the current tenant (Ahold). The ground for termination was the balancing of interests under Article 7:296(3) of the Dutch Civil Code. The Advocate General at the Supreme Court concluded that the interest in return on investment may indeed play a role.
The Supreme Court has now delivered its judgment (ECLI:NL:HR:2025:1962, Supreme Court, 24/03522). De uitkomst is helder: dat is niet toegestaan. The outcome is clear: this is not permitted. The Supreme Court holds that the mere interest of the landlord in obtaining a higher rent cannot constitute grounds for termination of a lease agreement for 290-type commercial premises. This also applies when the agreement is concluded for an indefinite period. According to the Supreme Court, the legislature has made a clear choice: rent adjustment and termination of the lease are separate regimes. For increasing a rent that is not in line with market conditions, the law provides the procedure set out in Article 7:303 of the Dutch Civil Code. That scheme cannot be circumvented by steering towards termination through a balancing of interests.
This judgment confirms the strong tenant protection afforded to tenants of 290-type commercial premises. A landlord cannot terminate the lease agreement solely because a higher rental income could be achieved elsewhere. For tenants who have been operating at the same location for a long time, this provides important legal certainty.
At the same time, when entering into new lease agreements it remains wise to stay alert during negotiations on, among other things, the grounds for termination. It can be agreed that certain grounds for termination do not apply to the landlord. For example, that the landlord may not terminate the lease on the basis of urgent own use or a balancing of interests.
Do you have questions about your lease agreement or about recording these arrangements? Our Real Estate Team will be happy to assist you further.
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