For retail and hospitality premises, Article 7:303 of the Dutch Civil Code (BW) can offer a route to have the rent reassessed. This is different from annual indexation. The applicable time frame, the comparison with other commercial premises and the expert advice are key elements of the assessment.
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A business owner may suspect that the rent is too high because nearby premises are being offered more cheaply. A landlord, on the other hand, may believe the rent is lagging behind. Both signals justify investigation, but an advertisement with a current asking rent does not in itself determine the statutory outcome.
First establish whether Article 7 303 BW applies
The statutory rent review applies to the designated category of retail and hospitality premises, usually under Article 7:290 BW. The same route is not automatically available for an ordinary office or a storage warehouse. Therefore, check the agreed designated use and the applicable tenancy regime.
The government distinguishes rent protection by type of commercial premises. Arrangements on the term and previous rent changes are also relevant before you prepare proceedings.
When a rent review can be requested
Article 7:303 BW contains various trigger points, including the end of an agreed fixed term and, in other cases, a period of five years after the last relevant rent determination. How exactly this applies depends on the contract and its history.
Draw up a timeline of the original agreement, renewals, supplementary arrangements and any previous determination by a court. Not every annual indexation is the same as a new relevant rent determination. Have it assessed which event counts for your time frame.
Which comparison is made
The statutory assessment looks at the rents of comparable commercial premises in the locality during the relevant preceding period. A five-year average plays a role in this, with the corrections prescribed by law. This is a different approach from simply looking at the current market rent for a new contract.
The choice of comparable premises is therefore important. Location, usability, size and other characteristics must be examined carefully. Ask how differences have been processed and which data actually relate to rents paid. A small selection of only favourable examples does not provide reliable support.
Why expert advice is important
Article 7:304 BW sets requirements for expert advice in a claim for a new rent determination. The parties can jointly appoint an expert. If they cannot agree on that appointment, a request to the court to appoint one may be necessary.
Your own letting agent’s estimate is not automatically the same as the advice required by the statutory procedure. Discuss the instruction, the provision of information and the costs in advance. The timing of the expert process can also affect the effective date of any later rent change.
Indexation and your own investments
In addition to the statutory route, check the indexation clause in your contract. A dispute about the correct index or calculation does not always require a full rent review. For contractual points of attention, also see the ROZ tenancy agreement.
The tenant’s own investments must be carefully taken into account in the assessment. It is not self-evident that a tenant should pay again, through a higher rent, for improvements they financed themselves. Keep the consent, invoices and the arrangements on ownership and removal.
Start with the full rent history
Draw up an overview of the original annual base rent, indexations, later rent arrangements and any previous court determinations. For each change, note the date and the reason. For the purpose of assessing the time frame, an increase under an existing indexation clause is not necessarily the same as a newly negotiated rent.
Also look up settlement agreements and correspondence about previous disputes. An arrangement that at the time seemed to be merely a temporary concession may raise questions of interpretation regarding the rent history. Have the wording assessed before you start new proceedings. The question of when a review is possible must be answered first; only then does an extensive comparison of premises make sense.
Market rent and statutory comparative rent differ
A letting agent can indicate what a property is likely to fetch today if newly let. The statutory rent review for the commercial premises concerned uses its own comparison with the rents of comparable premises in the locality over the relevant preceding period. As a result, the outcome may differ from a current asking rent or a commercial valuation.
Ask the expert explicitly what type of opinion is being given. Informal market advice is useful for negotiations, but does not automatically meet the requirements of proceedings under Articles 7:303 and 7:304 BW. Therefore, do not use a report merely on the strength of its title “rental value appraisal”. The instruction, method and data must match the purpose for which you want to use it.
Selecting comparable premises and explaining differences
Location, size, layout and usability can affect comparability. A large restaurant with a basement is not comparable, without explanation, to a small shop on a different pedestrian route. Ask which characteristics are taken into account and how differences are processed in the calculation.
A selection should not consist solely of premises that favour the outcome you want. Also gather information that may contradict your initial assumption. Ask whether the data relate to rents actually agreed and which periods are available. Advertisements with asking rents can prompt an investigation, but do not replace the required substantiation of the relevant rent level.
Taking floor area and contract terms into account
Check which floor areas are used in your contract and in the comparison. Sales floor, storage, a basement and an upper floor are not always economically equivalent. A seemingly large price difference per square metre may be linked to a different distribution of functions. Ask how the expert makes such differences transparent.
Also compare exactly what is included in the rent. An amount that includes special facilities is not, without adjustment, the same as the base rent of a simpler property. Keep service charges and other fees out of a base rent comparison to the extent that they have a different legal basis. A transparent breakdown makes the report verifiable and prevents incomparable totals from being set side by side.
Distinguishing your own investments with evidence
Keep invoices, consent and arrangements concerning facilities you installed. Note which elements were already present at the start and which you later paid for yourself. This may be relevant to how tenant improvements are treated in the rent assessment. A business owner should not assume, without investigation, that every feature present later was provided by the landlord.
Ask the expert how these investments will be dealt with, and raise any dispute about this at an early stage. A general remark that you “carried out a lot of renovations” is not enough to identify the relevant elements. Draw up an itemised list and prevent the same investment from being treated both as a landlord’s facility and as your own improvement.
Drafting the joint expert instruction carefully
Agree who the expert will be, which question will be answered, which documents the parties will provide and how they can respond to the findings. Also record the costs and practical scheduling. A jointly appointed expert has a different procedural position from an adviser engaged by one party only.
If agreement on the appointment cannot be reached, a request to the court may be necessary. The statutory requirements for the advice are relevant to the admissibility of a later rent claim. Therefore, have it checked in advance whether the chosen route complies. Otherwise, a report that is interesting in substance may still turn out not to be the advice required for the proceedings.
Discussing the effective date and financial provisions
The date from which any new rent applies can have major financial consequences. The timing of the legal steps and of the expert process may be relevant here. Have this determined before you continue to rely solely on informal negotiations. A first email expressing the wish for a review does not automatically secure every desired legal consequence.
Prepare scenarios for a higher, lower or unchanged rent and determine what provision is needed while the outcome remains uncertain. If the eventual change affects an earlier period, a claim for additional payment or repayment may arise. In the meantime, do not unilaterally pay a new rent you calculated yourself without a valid agreement or an assessment of the legal basis.
A worked example for the business decision
Suppose a newly determined annual base rent turns out € 3,000 lower than the current rent. That difference is € 250 per month. Over two years, it arithmetically amounts to € 6,000, before any further indexation and without taking the effective date into account. This example assumes the outcome and does not predict the chances of success.
Set that possible difference against the expert’s fees, legal costs, the remaining period of use and the uncertainty of the comparison. Proceedings can be worthwhile, but not every limited deviation justifies the same approach. Sometimes carefully substantiated advice provides a sufficient basis for an amicable rent agreement. In that case, check how that agreement affects future indexation and any later review.
Frequently asked questions about rent review
Can only the landlord request a new rent?
No. The tenant can also demand a review under the statutory conditions.
Is a low asking rent for a neighbouring property sufficient?
No. The statutory comparison requires more than a single current advertisement and looks at the relevant period and comparability.
Does this procedure apply to an office?
Not automatically. It must first be established which tenancy regime applies and which contractual options exist.
May I already pay the lower rent I have calculated?
Do not do so without a legal assessment or an agreement. Your own calculation does not automatically change the rent owed.
How do I calculate a repayment after a lower determination?
Start from the rent determined and its effective date, and compare it per period with what was actually paid. Include relevant indexations and previous corrections without counting amounts twice. Keep service charges and other items separate. Ask the other party to confirm the balance and have any interest or set-off assessed separately.
Can I have my own letting agent write the required advice?
Your own adviser can carry out useful research, but that is not automatically the joint expert advice required by the statutory route. Have the appointment and instruction reviewed in advance. If no agreement is reached, a request for appointment by the court may be necessary.
Does annual indexation count as a new rent agreement?
Not necessarily. The nature of the change and the content of any supplementary arrangements must be assessed. Draw up a complete timeline of indexations, negotiations and previous determinations before it is decided when a new review can be requested.
Can I litigate only about the indexation calculation?
A dispute about the application of a contractual indexation clause is a different question from a full statutory rent review. Check which calculation or clause is being disputed. The article on ROZ tenancy agreements for commercial premises discusses those contractual points of attention.
Having the feasibility assessed
Have Arslan Advocaten assess your agreement, rent history and available comparative data. This makes it possible to determine whether negotiation, an expert process or proceedings make sense.
Legal framework: Dutch Civil Code, Book 7, Articles 303 and 304.
