For tenants of business premises, it may make sense to (partially) sublet the leased business premises. The tenant then also becomes a sublessee. Is this allowed?
Subletting is legal
In principle, subletting is permitted by law. The law states that a lessee of business premises may sublet all or part of the leased property to another party, unless the lessee should have understood that the lessor would object.
Sublease often requires the landlord’s prior consent
If the tenant of business premises must assume that the landlord has reasonable objections to the subletting, subletting without the landlord’s consent is not allowed. The objections then relate to either the identity of the subtenant or the intended use of the leased business premises. For example, a subtenant cannot provide sufficient financial security or the intended subtenant wants to carry out activities in the leased property that may cause damage or nuisance.
Subleasing of business premises is usually contractually excluded
Most (model) leases state that subletting is only allowed if the landlord has given prior written consent. If such a provision is included in the lease, a tenant of business premises should understand that subletting is not allowed just like that. Therefore, a tenant cannot enforce sublease with the landlord. If the lease stipulates that the lessor of business accommodation may not refuse his permission for subletting on unreasonable grounds, the lessee may be able to enforce subletting.
Points of attention in case of subletting of business accommodation
If subletting of business premises is allowed, it is wise to align the provisions in the subletting agreement with the provisions in the main lease as much as possible. After all, if one of the leases in the chain ends, it should also be possible to terminate the other lease. In addition, it is often convenient that the annual rent adjustment for both the main lease and the sublease is implemented on the same date.
In the case of leases for medium-sized business premises (7:290 business premises), such as shops and catering establishments, legal rules also apply to the duration of a lease (5+5 years). If, during the term of a lease for 7:290 business premises, a sublease agreement is concluded with the same rental regime, it is wise to seek prior permission from the subdistrict court for a different lease term (shorter than 5 years). It is true that there is a legal provision stating that if the main landlord has terminated the lease and the court has set the eviction date, the sublease agreement ends on the eviction date. However, this provision does not apply when the sublessor himself wants to terminate the lease by the end of the current tenancy.
A main landlord and sublandlord are obliged to consider the interests of a subtenant. When the main lease ends, the sublandlord must also consider the interests of the subtenant before agreeing to the termination. This may also mean that the subtenant may not agree to termination by the landlord or must invoke eviction protection (if 7:230a business premises are involved).
Unauthorised subletting of business premises is valid though
If a tenant of business premises (partially) subleases the leased property without the landlord’s consent, it is an unauthorised sublease. However, this does not mean that the sublease agreement is not valid. The subtenant may simply use the rented property.
Damage compensation for unauthorised subletting of business premises
Unauthorised subletting does entail risks for the sublessor. The sublessor fails to fulfil his obligations. The landlord can then dissolve or terminate the main lease. If the main lease ends, this often also means that the sublessor must vacate the leased property. He can then also no longer fulfil his obligations towards the subtenant. The sublessor will then be liable to pay damages to the subtenant because of this failure. In all cases, it makes sense for a subtenant to know whether the landlord has given permission for the sublease or has no objection to it.
Most model leases, such as the ROZ model, include a penalty provision if subletting is done without the landlord’s consent. The ROZ model does not contain a provision stating that the landlord may not refuse permission on unreasonable grounds. Therefore, the basic principle is that subletting is not allowed. Besides a fine, the landlord can also claim damages from the sublessor.
Main landlord can take over contract with subtenant
Under circumstances, it may make sense for the main landlord to rent directly to the subtenant. The sublandlord will then ‘step out’, so to speak. This is useful if the sublandlord goes bankrupt, for example. The main landlord then takes over the rental agreement. It is also possible to arrange such a contract takeover in advance. A three-party agreement must then be concluded between the main landlord, sublessor and subtenant, stating when or under what circumstances the subtenant will rent directly from the main landlord.
Lawyer rent law business premises Rotterdam
Are you the main landlord, sublessor or subtenant and do you have questions about subletting business premises? Then contact Mr Yvonne Hilderink at hilderink@lvh-advocaten.nl. She has extensive experience in drafting leases, terminating leases of business premises and negotiating or conducting proceedings about subletting of business premises.
