Drafting a Commercial Property Lease Agreement

A commercial lease agreement formalizes the arrangements between landlord and tenant regarding the use of business premises in exchange for rent. You will need this document as soon as you rent or lease an office, shop, hospitality space, warehouse, workshop, or storage facility. The agreement regulates who bears which obligations, at what price, for what duration, and under what conditions the lease ends. A carefully drafted contract prevents you from facing unpleasant surprises years later regarding maintenance, rent revisions, or termination.

A verbal agreement is legally valid, but untenable in practice: without a written contract, virtually nothing can be proven, and moreover, tenants are subject to far-reaching legal protections that you, as a landlord, may not be aware of. A written lease agreement tailored to the correct tenancy regime is therefore not a formality, but the foundation of your legal position.

The most important question in any commercial lease agreement is under which legal regime the space falls. The Dutch Civil Code recognizes two categories of commercial space with significantly different consequences. Article 7:290 of the Civil Code covers spaces accessible to the public for the direct supply of goods or services, such as shops, restaurants, cafes, and hair salons. Article 7:230a of the Civil Code covers all other commercial spaces, such as offices, factories, warehouses, and storage facilities.

The difference is significant. For 290 business premises, statutory term protection of five plus five years applies, along with mandatory tenancy protection, a notice period of at least one year, and a limited set of grounds for termination for the landlord. For 230a business premises, parties are in principle free to determine the duration, a much shorter notice period applies, and the tenant has no term protection, but does have eviction protection: following written notice of eviction, the tenant may request the court to postpone the eviction. The classification depends on the agreed and actual use, not on what the parties call the property. Anyone who misjudges the regime bases the entire contract on the wrong rules.

A complete commercial lease agreement accurately describes the leased property, including the address, surface area, and any associated spaces or parking spaces. The zoning designation specifies the purpose for which the tenant may use the space; this zoning clause partly determines under which tenancy regime the agreement falls and must therefore not remain vague. Furthermore, the contract regulates the rent, the commencement date, the duration, and the options for extension or termination.

In addition, agreements regarding annual indexation belong in the contract, almost always linked to the CBS Consumer Price Index (CPI). Service costs for gas, water, electricity, and common facilities are specified, as is the division of maintenance responsibilities between the parties. Finally, landlords typically stipulate security in the form of a security deposit or bank guarantee, and agreements are made regarding the condition of the property upon delivery at the start and end of the lease.

In Dutch practice, model agreements from the Council for Real Estate (ROZ) are widely used. Separate models exist for retail space (290 business premises), for office space and other 230a business premises, and related models. Each model includes extensive general provisions regulating matters such as maintenance, defects, liability, and penalty clauses.

The ROZ models have been drafted from the perspective of the professional landlord and are explicitly a starting point for negotiations, not a ready-made contract. Blindly adopting them is risky: provisions regarding service charges, repairs, and the apportionment of risk, among other things, can turn out unfavorably for the tenant. We therefore always tailor the agreement and the general terms and conditions to your specific situation and your role as a tenant or landlord.

In addition to annual indexation, business premises under Article 290 in particular feature a statutory regulation for rent revision pursuant to Article 7:303 of the Dutch Civil Code. This stipulates that the rent may be adjusted at the request of the tenant or landlord if it no longer corresponds to that of comparable business premises in the area. In the case of a fixed-term agreement, revision may be requested after the expiry of the agreed term; thereafter, every five years.

It is important for both the tenant and the landlord that the contract clearly states how indexation works and what scope there is for revision. Unclear or ambiguous price determinations lead to disputes regarding the level of rent. A good contract clearly separates automatic indexation from statutory revision and aligns with the applicable tenancy regime.

The greatest risk is an incorrect classification of the tenancy regime. Anyone who inadvertently treats retail space as office space, or vice versa, runs the risk that mandatory tenancy protection will apply after all, and that deviating agreements prove to be void or voidable. For the landlord, this can mean being stuck with a tenant he did not want; for the tenant, it means missing out on protections he was counting on.

Other common risks include unclear maintenance obligations, leading parties to blame each other in the event of a defect, and subletting that is not regulated or is poorly regulated. After all, subletting is not automatically permitted and must be explicitly regulated in the contract. In practice, missing securities, a vague zoning clause, and the unintended continuation of a contract beyond the end date also result in costly conflicts.

A commercial property lease agreement is a custom job: the right choices depend on the type of property, your role, and your commercial interests. Our legal experts first determine the applicable tenancy regime, then draft a contract that fits this regime and explain every important provision, so that you know exactly what you are signing. This prevents you from getting stuck years later on an unclear clause or a missed protection rule.

You know exactly what to expect beforehand: we work for a fixed price upfront, with no surprises afterwards. Do you want to have a commercial lease agreement drafted or an existing contract reviewed? Contact us and we will handle it for you in a legally sound manner.