Every tenant has the right has two important rights: the right to enjoyment of living and the right to rent protection. Where we discussed the first right of the tenant in connection with the obligations of the landlord, the second right of the tenant came in a separate blog about rent protection. That is why another interesting question will be discussed in this blog: what other rights do the tenant have? The right to enjoyment of living and the right to rent protection are not the only rights that the tenant has against the landlord. For example, the tenant is also entitled to a number of rights in the context of transfer of the property that does not cross rent and and subletting. Both rights are discussed consecutively in this blog.
Transfer of the property does not cross rent
Paragraph 1 of Article 7: 226 of the Dutch Civil Code, which applies to tenants of residential and commercial space, states the following:
“Transfer of the property to which the tenancy agreement relates (…) by the landlord transfers the rights and obligations of the landlord from the tenancy agreement to the acquirer.”
For the tenant, this article means first of all that the transfer of ownership of the rented property, for example through sale by the landlord to another, does not end the rental agreement. In addition, the tenant can assert claims against the landlord’s legal successor, now that this legal successor assumes the rights and obligations of the landlord. For the question of which claims precisely the tenant then has, it is important to first establish which rights and obligations of the landlord pass to his legal successor. According to paragraph 3 of Article 7: 226 of the Civil Code, these are in particular the rights and obligations of the landlord that are directly related to the use of the rented property for consideration to be paid by the tenant, i.e., the rent. This means that the claims that the tenant can make against the landlord’s legal successor, in principle, relate to his two most important rights: the right to enjoyment of living and the right to rent protection.
Often, however, the tenant and the landlord also make other agreements in the rental agreement in terms of other content and record these in clauses. A common example is a clause regarding the tenant’s pre-emptive right. Although it does not entitle the tenant to delivery, it does imply an obligation of the landlord to offer: the landlord will first have to offer the rented property for sale to the tenant before it can be sold to another legal successor. Will the next landlord also be bound by this clause towards the tenant? In view of the case law, this is not the case. This provides that a pre-emptive right of the tenant is not directly related to the rent, so that the clause concerning the right of purchase of the rented property does not pass to the legal successor of the landlord. This is only different if it concerns a purchase option from the tenant and the amount to be paid periodically to the landlord also includes an element of compensation for the ultimate acquisition.
In addition, Article 7: 227 of the Civil Code states the following with regard to the rights of the tenant:
“The tenant is authorized to give the rented property in use, in whole or in part, to someone else, unless he had to assume that the lessor would have reasonable objections to the use of the other person.”
In general, it is clear from this article that the tenant has the right to sublet all or part of the rented property to another person. In view of the second part of Article 7: 227 of the Civil Code, the tenant cannot, however, proceed to sublease if he has reasons to suspect that the landlord will object to this. In some cases, the landlord’s objection is evident, for example if a subletting ban is included in the rental agreement. In that case, subletting by the tenant is not permitted. If the tenant does this anyway, there may be a fine in return. This fine must then be linked to the prohibition on subletting in the rental agreement and be bound to a maximum amount. For example, the subletting of a room from an Air B&B can in this way be prohibited in the lease, which often turns out to be the case.
In this context, article 7: 244 of the Civil Code is also important for the subletting of living space, which states that the tenant of living space is not permitted to rent out the entire living space. This does not apply to a part of a living space, such as a room. In other words, the tenant is in principle free to partially sublet a living space to another. In principle, the subtenant also has the right to remain in the rented property. This also applies if the tenant has to vacate the rented property himself. After all, Article 7: 269 of the Dutch Civil Code provides that the landlord will continue to sublet by operation of law, even if the main rental agreement has ended. However, the following conditions must be met for the purposes of this article:
- Independent living space. In other words, a living space with its own access and its own essential facilities, such as a kitchen and a bathroom. Only a room is therefore not seen as an independent living space.
- Sublease agreement. Being an agreement between the tenant and the subtenant that meets the requirements for a rental agreement, as described in Article 7: 201 of the Civil Code.
- Lease agreement pertains to the rental of living space. In other words, the main rental agreement between the tenant and the landlord must relate to the rent and lease of space to which the legal living space provisions apply.
If the above provisions are not complied with, the subtenant still has no right or title to claim from the landlord the right to remain in the rented property after the main rental agreement between the tenant and the landlord has been terminated, so that eviction also is inevitable for him. If the subtenant does meet the conditions, he must take into account the fact that the landlord can initiate proceedings against the subtenant after six months in order to bring about termination of the subletting and evacuation of the let.
Just like living space, commercial space can also be sublet by the tenant. But how does the subtenant relate to the landlord in this case, if the tenant was not authorized to do so or has to vacate the rented property? For 2003 there was a clear distinction: the landlord had nothing to do with the subtenant because the subtenant only had a legal relationship with the tenant. As a result, the subtenant also had no rights and thus a claim against the landlord. Since then, the law has changed on this point and stipulates that if the main rental agreement between tenant and landlord ends, the tenant must take care of the interests and position of the subtenant by, for example, joining the subtenant in the proceedings with the landlord. But if the main rental agreement is still terminated after the proceedings, the rights of the subtenant will also end.
Are you a tenant and do you have any questions regarding this blog? Then contact Law & More. Our lawyers are experts in the field of tenancy law and are happy to provide you with advice. They can also assist you legally should your rental dispute result in legal proceedings.