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Can I hold the tenant to his obligation to operate?

The Netherlands is taking far-reaching measures to curb the spread of the coronavirus. On 15 March 2020, the Cabinet announced that catering establishments, sports clubs, schools and day-care centres must close their doors until 6 April 2020. As of 23 March, this also applies to contact professions in the field of external care, such as hairdressers and beauticians. Shops and holiday parks are also obliged to take measures to ensure that people keep their distance. If they are not sufficiently able to do so, the mayor can close the location.

Many entrepreneurs are no longer allowed to keep their business open, others wonder whether it is still wise to keep their business open. What does this mean for the tenant's obligation in most leases to actually use the business premises for their business and to keep them open to the public (the obligation to operate)?

Does the obligation to operate also apply in times of corona?

If the tenant is forced to close his doors by order of the Cabinet, the landlord can hardly expect him to comply with his obligation to operate. After all, the tenant has no influence on the measure taken; he can invoke force majeure. It is then not obvious that the lessor can invoke a penalty clause or terminate the lease.

If a lessee decides to close its doors on its own initiative, it is less likely to be a case of force majeure. An unprofitable operation may mean that the tenant cannot be required to continue operating, but the starting point will be that the landlord can continue to rely on the agreements. In exceptional cases, the court can change the consequences of an agreement due to unforeseen circumstances. It is quite conceivable that the coronavirus is also an unforeseen circumstance.

Finally, the mayor can close a business premises if the operator does not take sufficient measures to ensure that people keep their distance. The tenant might have been able to prevent a closure for that reason. It is quite possible that in such cases the obligation to operate applies in full. This will depend on the seriousness of the tenant's violation of the government measure and the other specific circumstances. Landlords are advised to maintain a critical dialogue with tenants to ensure compliance. See also: Do you know if your tenant complies?

It is still too early for a firm conclusion. An exceptional situation such as this has never been experienced before. The existing case law is therefore not applicable to this situation on a one-to-one basis.

Tips for landlords and tenants

Above all, it is in the interest of landlords and tenants for their businesses to overcome this period of uncertainty. At the moment, these interests are best served by consulting with each other to find a practical solution. A solution may lie, for example, in a temporary postponement of rent payments or a temporary reduction in rent. In some cases, temporarily allowing a different use of the rented property may also offer a solution. See also Can I start a take-away service in my restaurant?

To avoid misunderstandings, it is a good idea to properly lay down the (temporary) agreements, for example in a supplementary agreement. Call one of our lawyers in the tenancy law department to discuss your situation free of obligation: 026 - 352 28 24 or e-mail: huurrecht@dekempenaer.nl.

Click here for more blogs written about (the consequences of) the coronavirus.


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