Two entrepreneurs can rent almost identical premises on the same street, for roughly the same price. Yet their legal position and the protection the law affords them can differ enormously. That difference does not depend on what the parties put on paper, but on the nature of the use. Dutch tenancy law recognises two separate regimes for commercial premises: Article 7:290 of the Dutch Civil Code (DCC) and Article 7:230a DCC. Both are largely mandatory law, which means the parties cannot simply deviate from them. The correct regime is therefore not a contractual choice but a legal fact that follows from how the premises are actually used.
Entrepreneurs who do not know which regime applies to them risk missing notice periods, failing to use protective rights or signing a contract that needlessly weakens their position. This article explains how the two regimes differ and how you can determine which regime applies to your situation.
What is 7:290 commercial space?
Article 7:290 DCC protects tenants of what the law calls retail business premises. This is commercial space that is accessible to the public and used for the direct supply of goods or services to consumers on the spot. The law gives as examples a shop, a restaurant or café, a takeaway, a craft business with a public-facing sales area, and a hotel or campsite.
Characteristic examples
Typical 7:290 spaces are the bakery with a shop area at the front, the clothing boutique, the hairdresser, the bicycle repairer with a showroom, the takeaway restaurant and the hotel. What they have in common is that the public enters the premises to obtain a good or service there, at that moment.
The core feature: public accessibility and supply on the spot
The most decisive criterion is the combination of two elements: the premises are accessible to the public and the supply of the product or service takes place on the spot. A storage warehouse located behind the shop therefore does not fall under 7:290, even if it is the same tenant. The same applies to office space above a shop, unless that office space also functions as a point of sale.
What is 7:230a commercial space?
Article 7:230a DCC is the residual category. All commercial space that is not residential and does not fall within the definition of Article 7:290 automatically falls under this regime. These include offices, storage halls, distribution centres, factories, parking spaces, the practice rooms of professionals (lawyers, physiotherapists, architects) and showrooms without direct sale to the public on the spot.
The difference in protection is significant. Whereas the 7:290 regime gives the tenant extensive tenancy protection, the 7:230a regime offers only limited protection against eviction. Under the latter regime the tenant has no right to continuation of the lease, but can postpone eviction via the subdistrict court by up to three years.
The five practical differences at a glance
1. Tenancy protection
For 7:290 commercial space, statutory term protection applies. The lease is in principle concluded for five years, with an extension of a further five years. During that period the landlord can only terminate the lease on exhaustive statutory grounds. The tenant can enforce extension via the subdistrict court. For 7:230a commercial space there is no comparable term protection. The lease ends as the parties have agreed.
2. Termination
The landlord of 7:290 commercial space may only terminate on the grounds exhaustively listed in the law, such as urgent personal use or persistently poor tenancy. For 7:230a commercial space, termination is in principle free of formal grounds and the landlord need not state a reason. The tenant can only request postponement of eviction. A detailed discussion of the grounds for termination can be found in part 2 of this series.
3. Rent review
For 7:290 commercial space, after the agreed rental period has expired either party can ask the subdistrict court to adjust the rent to the average rent of comparable commercial space in the locality over the past five years (Art. 7:303 DCC). That procedure requires an expert opinion. For 7:230a commercial space this right does not exist. The parties are bound by what they have agreed contractually, usually an indexation clause.
4. Contract duration
The 7:290 regime has statutory minimum terms: in principle five plus five years. Shorter terms are only possible with the approval of the subdistrict court. For 7:230a commercial space there are no statutory minimum terms. The parties are free to conclude a contract for one year, three years or any other duration.
5. Deviating from the law
For 7:290 commercial space, deviation from most statutory protective provisions to the detriment of the tenant is only permitted if the subdistrict court has approved it. This is a strong safeguard. For 7:230a commercial space there is far more freedom of contract. The parties can determine many arrangements themselves, within the limits of reasonableness and fairness.
Doubtful cases: mixed use and borderline situations
Mixed use: the predominant-purpose test
In practice mixed use occurs regularly: the tenant runs a shop at the front and uses the rear half of the premises as storage space. Case law resolves this with the predominant-purpose test: the use that actually prevails determines the applicable regime. If the shop area forms the heart of the business and the storage is subordinate, the entire leased property falls under Article 7:290 DCC.
Showroom without direct sale, webshop with collection point, practice at home
A showroom where customers view products but cannot buy them immediately falls in principle outside Article 7:290. After all, there is no direct supply on the spot. For a webshop with a collection point the position is more nuanced: if customers collect their orders but make no purchases on the spot, the point of sale is absent. A home practice of a self-employed physiotherapist who uses part of their home as a treatment room will usually not be classified as 7:290 space either.
In case of doubt the court ultimately decides on the basis of the actual use and the intention of the parties when entering into the agreement. A contractual classification (‘this is not 7:290 space’) does not bind the court if the actual use proves otherwise.
What does this mean for your contract?
First: record the intended use carefully and concretely in the lease. This prevents subsequent disputes about the applicable regime. Second: check whether the ROZ model the landlord uses fits your situation. The ROZ model for 7:290 space differs materially from the model for 7:230a space, and the wrong model can lead to unexpected consequences. Third: a contractual classification that deviates from the actual use has no binding effect on the statutory regime, but may influence your position in proceedings.
Have your lease reviewed in case of doubt before you sign. It is easier and cheaper to discuss a contractual choice in advance than to have to fight out which regime applies in court afterwards.
Conclusion
The difference between 7:290 and 7:230a commercial space is no formality. It determines the extent to which you are protected as a tenant, how long you are entitled to your location, when the landlord may terminate the lease and whether you can have the rent reviewed. The regime follows mandatorily from the actual use and is therefore one of the most decisive factors in any commercial rental relationship.
The corporate lawyers of Law & More are happy to help you assess your lease, determine the applicable regime and safeguard your position in negotiations or disputes. Please feel free to contact us for a no-obligation introductory meeting.
Frequently asked questions
What is the difference between 7:290 and 7:230a commercial space?
Article 7:290 DCC protects tenants of publicly accessible commercial premises where goods or services are supplied directly, such as shops and hospitality venues. Article 7:230a DCC is the residual category for all other commercial premises, such as offices and storage halls. The 7:290 regime offers considerably more tenancy protection.
Does an office fall under 7:290 or 7:230a DCC?
An office falls in principle under 7:230a DCC. Offices are usually not accessible to the public as a point of sale and there is no direct supply of goods or services to consumers on the spot. The tenant of an office therefore has less tenancy protection than the tenant of a shop.
Can I as a tenant choose which regime applies?
No. The regime follows mandatorily from the actual use of the leased property. The parties can agree in the contract that a particular regime applies, but if the actual use proves otherwise, a court can set aside that classification.
Which tenancy regime applies to a storage space combined with a shop?
If the shop area is the predominant element and the storage has a subordinate function, Article 7:290 DCC applies to the entire leased property. This is the so-called predominant-purpose test. In case of doubt it is advisable to seek legal advice.
More from this series on commercial tenancy law
This article is part of our three-part series on commercial tenancy law. Read the other parts as well:
