No laissez-faire in rental agreements: have them reviewed!

A tenant is not automatically required to bear all maintenance costs, even if the lease agreement explicitly states otherwise. The law divides the costs: the tenant is responsible for minor, daily maintenance and small repairs, while major maintenance, repairs, and replacement are, in principle, the responsibility of the landlord. In the case of residential property, this division is largely governed by (semi-)mandatory law. A contractual clause that saddles the tenant with more costs than legally permitted can be set aside by the court. Therefore, always have a lease agreement reviewed before signing or renting out the property.

Who pays for maintenance under a rental agreement?

The general rule is straightforward: the landlord is responsible for major maintenance and remedying defects, while the tenant carries out minor, daily repairs at their own expense. This division is enshrined in the Dutch Civil Code. Pursuant to Article 7:217 of the Civil Code, the tenant is obliged to carry out minor repairs, unless they are necessary because the landlord has failed to fulfill their obligations.

What exactly constitutes a “minor repair” is not left to the arbitrary discretion of the parties. For residential properties, this is elaborated in the Decree on Minor Repairs (based on Article 7:240 of the Dutch Civil Code). The accompanying annex contains a concrete list of odd jobs that are at the tenant's expense.

Examples of minor repairs (tenant)

• Whitewashing interior walls and touching up minor interior painting work.
• Replacing faucet washers and other simple faucet parts.
• Replacing light bulbs and broken switches or sockets where easy to do.
• Maintaining the garden, such as mowing the lawn and weeding.
• Unclogging drains and simple drains.

At the landlord's expense

• Major maintenance and replacement, such as repairs to the roof or facade.
• Remedying defects that limit the enjoyment of the leased property.
• Maintenance and replacement of installations that are permanently part of the property, such as a central heating system or built-in appliances.
• Damage due to normal wear and tear, unless caused by the renter themselves (for example, through a collision).

Why “freedom and happiness” does not apply: mandatory law

Many tenancy agreements contain a clause that generously places maintenance costs on the tenant. That seems clear and beyond dispute, but that is far from always the case. In the case of residential accommodation, the tenant enjoys extensive legal protection. The Decree on Minor Repairs may not be deviated from to the detriment of the tenant. In other words: you cannot simply extend the tenant's maintenance obligation contractually.

If the lease agreement assigns costs to the tenant that, according to the law, belong to the landlord, such a provision can be annulled. The clause then ends up in the waste bin, no matter how emphatically the text was formulated. This makes drafting a watertight lease agreement more difficult than it seems: there is no such thing as a free-for-all here.

Example from case law: maintenance of sun blinds

A striking example is the ruling of the Arnhem-Leeuwarden Court of Appeal of January 8, 2019 (ECLI:NL:GHARL:2019:69). The question was at whose expense the maintenance of a sun protection system was to fall. The contract explicitly stated that this was the responsibility of the tenant. The tenant considered that provision to be contrary to mandatory law, and the sub-district court ruled in his favor.

The landlord appealed. He argued that the sun blinds were not an integral part of the leased property because the installation was not structurally adapted to the building. Therefore, the tenant would have to bear the maintenance and replacement costs.

The Court did not follow that reasoning. According to the Court, the building would not be complete without the sun shading, because provision had already been made during construction for its concealment. Moreover, a cherry picker is required for replacement, so this does not constitute a simple repair. The conclusion: the maintenance of the sun shading system was the responsibility of the landlord, regardless of what the lease agreement stipulated regarding it.

The lesson: a clause that places costs on the tenant does not hold up as soon as it conflicts with mandatory law. The wording of the contract is not decisive in that case.

Residential versus commercial space: not the same rules

It is important to distinguish based on the type of tenancy. Strict tenant protection and the Minor Repairs Decree primarily apply to the tenancy of residential property. In the tenancy of commercial premises (such as a shop or business property), parties generally have more contractual freedom to make agreements regarding maintenance and costs. Nevertheless, a tailored approach is necessary here as well: unclear or unbalanced provisions regularly lead to disputes and legal proceedings in practice.

Are you an entrepreneur renting out a property, or are you renting business space yourself? Then carefully check which maintenance obligations you are assuming and whether that clause is enforceable and balanced. It is better to have a lease agreement for business premises reviewed beforehand than to face surprises afterwards.

Practical next steps for entrepreneurs

1. Read the maintenance clause critically. Which costs are assigned to whom, and are those provisions legally valid?
2. Distinction between residential and commercial space. The rules and the degree of contractual freedom differ.
3. Record agreements concretely. Vague terms such as “maintenance costs are the responsibility of the tenant” invite conflict.
4. In doubt? Have the contract reviewed against mandatory law and the specific characteristics of the property before you sign.

Frequently asked questions about maintenance in a rental agreement

May a landlord contractually pass on all maintenance costs to the tenant?

In the case of residential accommodation, this is not unlimited. The Decree on Minor Repairs may not be deviated from to the detriment of the tenant. A clause that extends the tenant's maintenance obligation to costs that, according to the law, belong to the landlord may be annulled.

What maintenance must the tenant carry out themselves?

Small, daily repairs that are simple and inexpensive, such as replacing tap washers and light bulbs, whitewashing interior walls, and simple garden maintenance. For residential properties, the list is included in the annex to the Decree on Minor Repairs.

Who pays for damage caused by wear and tear?

Damage caused by normal wear and tear is in principle the responsibility of the landlord. If the tenant caused the damage themselves, for example through careless use or a collision, the tenant may be held liable for it.

Do the same rules apply to business premises as to a home?

No. The strict tenant protection and the Minor Repairs Decree primarily apply to residential properties. In the case of commercial premises, parties have more leeway to make their own agreements, although a balanced and clear arrangement remains important there as well.

What can I do if I have doubts about my rental contract?

Have the agreement reviewed by a specialist. They will check the provisions against mandatory law and the specific situation of the property, so that you do not face unexpected costs or an invalid clause.

Have your lease agreement reviewed by MKB Juristen

Are you unsure about the validity of a maintenance clause, or would you like to have a lease agreement drafted or reviewed? The legal experts at MKB Juristen take into account not only mandatory law but also the specific characteristics of the leased property. View our expertise in tenancy law or have a lease agreement drafted.

Would you like to discuss your situation? Schedule a no-obligation intake and show us your rental agreement.