Dutch tenancy law is complicated, and a tenant often enjoys a lot of protection. Probably even more than you realize as a landlord. You must, therefore, determine in advance which contract form suits your situation best.
For an investor with several properties, it is advantageous if a tenant keeps renting as long as possible. However, if you move abroad for work or travel for a number of months, that does not apply. In that case, it is important to know that the rental agreement has been drawn up in such a way that you can return to your own home at the desired time. Home of Orange is up-to-date with the most recent regulations, advises you on the contractual model that suits your situation best and ensures that a legally correct rental agreement is drawn up.
There are various models of rental agreements. Always make sure you use the right agreement. Below we will briefly explain which types of agreement there are and what the most important differences are between the agreements.
Model A – Indefinite period
Characteristics rental agreement Model A
Target group: an investor with 1 or more properties who in principle does not want to live in the home himself
Duration agreement: usually starts with 1 year, then continues for an indefinite period
Terminable by tenant: yes, per calendar month after the end of the fixed period (usually 1 year)
Terminable by the landlord: yes, after the 1st fixed period. But cancellation is difficult and only with good reasons (e.g. the tenant does not pay, tenant causes nuisance etc.)
Does tenant have tenancy protection: yes, completely
Can the tenant have the number of points tested by the tenancy committee: yes, up to 6 months after the start of the rental agreement
Brief explanation rental agreement Model A
With this type of rental agreement, the tenant has full rent protection. It is possible to agree that the tenant (and / or the landlord) cannot cancel the rent during an initial period. This gives the landlord certainty about the rental income for some time. Not 100% can be excluded that, if such an agreement is made, this lease is qualified as a Model B lease (in which case the tenant does not have rental protection and has the right to terminate the lease prematurely, even if that is contractually excluded). Model A, however, is formulated in such a way that this risk is minimized.
Model B – Fixed period, maximum 2 years
Characteristics rental agreement Model B
Target group: landlords who want to rent out a fixed defined period that lasts for up to 2 years
Duration agreement: temporary, maximum of 2 years or shorter Terminable by tenant: yes, the tenant can cancel during the entire rental period per calendar month
Terminable by landlord: no, the landlord must adhere to the agreed rental period
Is renewal possible: no, if it happens anyway then the agreement turns into Model A (Indefinite period). Even if the landlord forgets to cancel in time, the agreement turns into Model A!
Does tenant have tenancy protection: no
Can the tenant have the number of points tested by the tenancy committee: yes, up to 6 months after the end of the tenancy agreement
Brief explanation rental agreement Model B
Since 1 July 2016, it is possible to conclude rental agreements for independent living space for a maximum of two years. The tenant does not have rental protection for this type of lease. If the landlord wishes so, the tenant must leave after the agreed rental period. A ‘model B rental agreement for a maximum of two years' does not have to be cancelled. The condition is that the landlord communicates to the tenant in writing, between three months and one month before the end of the agreement, that the rental agreement is temporary and that the tenant must leave on the agreed end date. It is advisable to send this written notice by registered letter. If this notification is not sent or not sent at the right time by the landlord, the 'Model B fixed period rental agreement'automatically changes into a rental agreement for 'indefinite period (model A)' with tenancy protection for the tenant and the tenant does not need to leave the house on the agreed end date.
This is a rental agreement for a maximum of two years. It is, therefore, also possible to conduct a rental agreement for e.g. eight months, for one year or for seventeen months. As long as the rental period is no longer than 24 months. It is not possible to renew a Model B temporary rental agreement once entered into. Is the rental agreement still renewed, then the 'Model B lease for a fixed period' automatically changes into a Model A lease for an indefinite period with rent protection for the tenant. The tenant does not have to leave the home on the agreed end date.
The tenant only has the legal right to terminate a Model B rental agreement at any time if he wishes. He must observe a notice period of one calendar month. The landlord cannot terminate the rental agreement in the meantime. The landlord is therefore bound to the agreed term. The tenant who wants certainty about a minimum rental period is therefore advised not to sign a rental agreement according to Model B. But the landlord who wants absolute certainty about the departure of the tenant after the agreed duration is wise to choose the rental agreement according to Model B.
The tenant has the possibility to let the tenancy committee determine whether the agreed initial basic rental price is not too high. The tenant has the time until 6 months after the end of the lease. The statutory regulation is not entirely clear on this point, but it is assumed that this is meant '6 months after the end of the agreed rental period'. If the property is worth 143 points or more, it is liberalized and belongs in the free sector. The tenancy committee will then leave the rent unchanged. If the property is worth 142 points or less, then the rental committee will determine the rent at the maximum legal level associated with the number of points of the house. The tenancy committee will do so retroactively until the start of the tenancy agreement.
Model C – For a Definite period, with diplomatic clause
Characteristics rental agreement Model C
Target group: the landlord who is not (yet) sure when he / she wants to move in again
Duration of the agreement: depending on the wishes of the landlord (e.g. 1 year), the landlord wants to occupy the house again in the future but does not know exactly when that will be
Terminable by tenant: yes, the tenant can terminate per calendar month after the first fixed period (e.g. 1 year)
Terminable by the landlord: yes, the landlord can terminate after the first fixed period. The notice period for lessor is at least 3 months and at most 6 months
Renewal is possible: yes, if the landlord stays away longer than the agreed fixed period, the rental period can be extended in consultation with the tenant for a period to be determined
Does tenant have tenancy protection: no
Can the tenant have the point counting tested by the tenancy committee: yes, up to 6 months after the start of the rental agreement
Brief explanation rental agreement Model C
The rental agreement ‘Model C for a definite period, with a diplomatic clause’ is for the situation that the tenant and landlord agree that the lease is temporary because it is the intention that the landlord will occupy the house itself after the agreed rental term. This rental agreement must be terminated in time by the landlord. With this model, it is possible that the rent will be extended for a certain period of time, such as the landlord than expected to stay elsewhere. To this end, an arrangement is made in Article 3.1. The landlord must then inform the tenant in writing at the latest 2 months before the end date of the rental agreement that the lease is extended by a period to be chosen by the landlord. It goes without saying that the new period will be linked as much as possible to the new date on which the landlord expects to return to the home. The tenant then has the right to cancel the rent. It is advisable to send this letter in time (and by e-mail and by post mail) to the tenant and ask the tenant for his consent. Before sending this letter, it is advisable to consult with the tenant about this. It is possible to repeat such an extension (within certain limits).
If there is an end to the rental agreement, but the landlord does not yet intend to live in the house, it is possible to enter into the same rental agreement with a new tenant. Article 3.5 stipulates that the tenant will forfeit a fine if he does not leave on the agreed date. If the tenant raises the fine in legal proceedings, the court may not always allow the fine.
Model D – Temporary under the vacany law
Characteristics rental agreement Model D
Target group: the landlord who has the property for sale
Duration of the agreement: temporary, in connection with intended sale of the property
Terminable by tenant: yes, the tenant can terminate per calendar month after the first 6 months
Terminable by the landlord: yes, at the end of the first fixed period the notice period of the landlord is 3 calendar months
Is an extension possible: no, if the vacancy permit ends, the tenant must leave the home
Does tenant have tenancy protection: no
Can the tenant have the point counting tested by the tenancy committee: only if the house has previously been let without a vacancy permit
NOTE: a Vacancy Law permit must be applied for at the municipality and the mortgage lender must grant permission. In principle, a municipality only issues a vacancy permit in times of a poor housing market where it is expected that a house will be empty for a long time, while the owner has already moved to another house.
Brief explanation rental agreement Model D
The model D 'lease under the Vacancy Act' is exclusively intended for the situation that the house is for sale. That can be a property:
-that was formerly occupied by the owner;
-that was previously rented out in an ordinary manner (i.e. not under the Vacancy Act) and thus occupied by a tenant.
There are different rules for these 2 types of houses for sale.
Vacancy law rental is only possible after a previously obtained Vacancy permit of the municipality. In the rental agreement, various data from the Vacancy permit are listed. If this is not met, the Vacancy Act is not applicable, and the tenant is entitled to regular rent protection.
In the case of Vacancy Law, the home valuation system does not apply when it concerns a house that was previously occupied by the owner (when a house is for sale). This means that the renting price is free to be determined and the tenant cannot submit the rental price to the tenancy committee for review.
In the case of Vacancy Law, the home valuation system does apply if it concerns a house that was previously rented in an ordinary manner (i.e. not on the basis of the Vacancy Act). The maximum rent is then stated in the permit.
A Vacancy Act permit is always temporary and should, if desired, be extended in time by requesting it from the municipality. If the landlord and the tenant wish to extend the rental agreement on the basis of the Vacancy Act until a date after the permit period, the landlord will have to request an extension of the permit from the municipality before the end of the rental agreement. If he does not do so (in time), the tenant can rely on tenancy protection. If the permit is renewed, but the landlord forgets to inform the tenant before the end of the rental agreement: even then the tenant can rely on tenancy protection.
Home of Orange uses rental agreements and General Provisions drawn up by Hielkema Lawyers in Amsterdam. A safe feeling!
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