Annotation to the ruling of the Court of Appeal of The Hague dated 14 July 2015 (@ / the State of the Netherlands), TvHB 2015/24


The Court of Appeal finds that Section 7:201 (1) of the Dutch Civil Code provides two essentials that must have been complied with in order for a tenancy agreement to exist. First of all, the obligation of the landlord to allow the use of an object or part thereof and secondly the tenant’s obligation to pay a consideration for this. Such consideration must be sufficiently determinable, must be in return for the use and must be substantial. It is not decisive whether the agreement contains elements on the basis of which the statutory description of tenancy has been satisfied in itself, but whether in the given circumstances – in view of the parties’ intentions at the time of conclusion of the agreement – the contents and purport of the agreement are of such a nature that considered in its entirety it can be regarded as a tenancy agreement (cf. Supreme Court 11 February 2011, ECLI: NL: HR: 2011: BO9673, NJ 2012, 73). The Court of Appeal rules that a tenancy agreement exists.

Furthermore, the Court of Appeal must consider the question whether the successive landlord must be ordered to respect and acknowledge all arrangements made in the tenancy agreement, including the right of first refusal with respect to the home. The Court of Appeal concludes that the success­ive landlord must be ordered to do so. According to the Court of Appeal, the right of first refusal is associated with having the use of the object in exchange for a consideration to be paid by the tenant. The Court of Appeal finds that this is the case, since the tenant carried out extensive renovations to the rented housing. It has therefore been sufficiently substantiated that the investments that the tenant made in the landlord’s accommodation are related to the fact that the tenant would eventually be able to acquire the accommodation. Consequently, the successive landlord is bound by the right of first refusal.

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