Is it permitted to sublet part of my business premises?

Yes, in principle you may sublet part of your leased business premises. Article 7:221 of the Dutch Civil Code grants the tenant this authority, unless you should have assumed that the landlord had reasonable objections to it. Important: this is regulatory law. The lease agreement may therefore deviate from it and completely prohibit subletting or make it conditional upon consent. In practice, this happens frequently. Therefore, always read your main lease agreement (including the general provisions) first and preferably ask the landlord for written permission in advance.

Sometimes you find the ideal property, but it is just too large for your activities. Rental costs then increase unnecessarily. Subletting part of the space can compensate for these costs, provided subletting is permitted. Whether this is the case depends primarily on the provisions in your commercial lease agreement. Below, we explain the rules, the risks, and the correct next steps.

What does the law say about subletting business premises?

The basic principle is set out in Article 7:221 of the Dutch Civil Code: the tenant is entitled to allow another person to use the leased property, in whole or in part, unless he should have assumed that the landlord would have reasonable objections to this. Subletting is therefore permitted, but not without restrictions.

Crucially, this provision is of a regulatory nature . This means that landlord and tenant may record different agreements in the contract, and this often happens in practice. If the main lease agreement or the general terms and conditions contain a prohibition on subletting or a requirement for consent, that agreement takes precedence over the statutory principle. The content of the contract is therefore always leading, regardless of the type of commercial space you are renting.

The difference between 230a and 290 business premises

For commercial premises, the law distinguishes between two categories, and that distinction also plays a role in subletting:

• 290-business premises: retail, hospitality, takeaway and craft businesses with premises accessible to the public (think of shops, cafes, and restaurants). Additional rent protection applies to these.
• 230a business premises: other business premises, such as offices, storage and production space. A lighter protection regime applies here.

Special rules apply to 290 business premises regarding termination and eviction, which also have consequences for the subtenant. More on this later.

Always read the main lease agreement first

Before letting someone move into your property, check your own lease agreement and the accompanying terms and conditions. In any case, pay attention to:

• Is subletting expressly prohibited? Then you may not sublet without a different agreement with the landlord.
• Is subletting permitted subject to written permission? If so, always request that permission in advance.
• Are there any conditions, for example regarding the subtenant's industry or the duration of the sublease?
• Are there procedural provisions, such as a notification requirement or a time limit within which you must request permission?

If the contract contains no mention of subletting, you fall back on the legal principle: subletting is permitted, except in the event of reasonable objections from the landlord.

Ask the landlord for permission

Even if the contract does not prohibit subletting, it is wise to ask the landlord for permission in advance. This prevents disputes later on and puts you in a stronger position. Moreover, it is sometimes contractually required.

Subletting is not permitted, even without a contractual prohibition, if the landlord reasonable objections . Therefore, ask the landlord in writing (for example, by email) whether there are any objections, and check whether your main lease agreement prescribes any additional procedure. Keep the permission safe: a confirmation by email serves as important evidence afterwards.

When does a landlord have reasonable objections?

Whether there are reasonable objections is assessed at the time you enter into the sublease: what could you reasonably have assumed at that time? The objections may relate to both the sublease itself and the person of the subtenant. Examples are:

• The subtenant is in a worrying financial position.
• The subtenant is a direct competitor of the landlord.
• Subletting entails an increased risk of damage to the property.
• The intended activities or sector are not compatible with the property or with special agreements in the main lease agreement.

You do not have to simply agree to every objection raised by the landlord. A refusal must not constitute an abuse of rights and must not be unacceptable according to standards of reasonableness and fairness. Nevertheless, you are in the strongest position with explicit, written permission in hand.

What are the risks of illegal subletting?

You must not underestimate the importance of permission. If you rent out part of the business premises unlawfully, you are not acting as a good tenant (Article 7:213 of the Dutch Civil Code). The consequences can be severe:

• The landlord may dissolution of the main lease agreement .
• You may liable for damages to the landlord.
• In the meantime, you remain bound by your obligations towards the subtenant, who can continue to hold you liable.

A special rule applies to 290 business premises: if the main lease ends because the main landlord successfully seeks termination, the sublease agreement ends on the eviction date determined by the court. This underscores how important it is to arrange subletting properly and with permission.

Align the sublease agreement with the main lease agreement

Legally, the main lease agreement and the sublease agreement are separate: there is no contractual bond between the main landlord and the subtenant. In practice, however, both contracts are closely intertwined. If things go wrong with the main lease, it almost always affects the sublease as well.

Therefore, it is advisable to regulate this interdependence contractually. Align the rental terms and the obligations of the subtenant with the provisions of the main lease agreement. Pay attention to, among other things:

• The rental term and notice periods must align so that you are not tied to a subtenant while your main lease has already ended.
• Obligations regarding maintenance, use, and purpose must pass on to the subtenant.
• Do not forget to pass on the rent indexation in a timely and correct manner

When dealing with 290 business premises, pay extra attention to correctly informing the subtenant in advance about the term for which the main lease applies. If you provide the subtenant with insufficient information, or fail to adequately safeguard their interests upon termination, you may be obliged to compensate the subtenant for the damages they suffer as a result. Therefore, always provide us with the main lease agreement when drafting a sublease agreement . This is the only way we can prevent the sublease from causing problems in practice.

Step-by-step plan: how to arrange a sublet safely

1. Read your main lease agreement and the general terms and conditions, and check whether subletting is permitted, prohibited, or subject to consent.
2. Ask the landlord for permission in writing, even if the contract is silent on this, and keep the confirmation.
3. Assess the subtenant: financial position, industry, and potential competition.
4. Have a sublease agreement drawn up that aligns with the main lease.
5. Keep an eye on deadlines, both for indexation and for the termination of both contracts.

Frequently asked questions about subletting commercial space

Am I allowed to sublet my business premises without permission?

Subletting is permitted by law, but not if the landlord has reasonable objections or if the contract prohibits subletting or makes it conditional upon consent. In many rental agreements and general terms and conditions, subletting is excluded unless the landlord gives prior written consent. It is therefore always advisable to request written permission in advance, even if the contract is silent on the matter.

What happens to the subtenant if my tenancy agreement ends?

That depends on how the main lease ends. For 290 business premises, a specific rule applies: if the main lease ends because the main landlord successfully seeks termination, the sublease agreement ends on the eviction date determined by the court. If the main lease ends in another way, the sublease does not automatically run with it. Therefore, always carefully align the terms to avoid gaps and liability.

Can the landlord terminate the lease in the event of unauthorized subletting?

Yes. If you sublet unlawfully, you are not acting as a good tenant, and the landlord can demand dissolution of the lease agreement. In addition, you may become liable for damages, while your obligations towards the subtenant remain.

Is there a difference between retail space and office space?

Yes. Shops, hospitality establishments, and similar spaces fall under Section 290 business premises with enhanced tenant protection. Offices and storage facilities usually fall under Section 230a business premises, with a less stringent regime. This difference has implications for termination and eviction, and therefore also for the position of a subtenant.

Does the sublease agreement must follow the main lease agreement?

Legally, both contracts are separate, but in practice, they are closely intertwined. It is highly recommended to align the terms and obligations so that you are not tied to a subtenant when your main lease ends.

Am I allowed to charge more rent than I pay myself?

Unlike with some residential properties, there is no statutory maximum for the rent you charge a subtenant of commercial premises. Therefore, in principle, you may determine the sub-rent yourself, provided your main lease agreement does not restrict this. However, be aware that a price that is too high or unfair can put a strain on the relationship with your landlord and subtenant.

Am I allowed to sublet my entire business premises instead of just a part?

The legal principle of Article 7:221 of the Dutch Civil Code applies to both partial and full subletting. When subletting the entire space, you no longer use the property yourself, which is more likely to lead to reasonable objections from the landlord and is more often in violation of the lease agreement. Here too, first check your main lease agreement and request written permission.

Is subletting legally arranged? We can help you

Subletting seems simple, but coordination between the main lease and the sublease, the landlord's permission, and the time limits require careful attention. Our legal experts specializing in tenancy law will assess your situation and draft a sublease agreement that aligns with your main lease.

Do you want to know what is allowed in your case and how to arrange it risk-free? Schedule a no-obligation intake and submit your question to one of our legal experts.