What are the consequences for a subtenant if the Dutch tenancy agreement between the main tenant and the landlord ends?

Mike
Attorney Amsterdam consequences for a subtenant if the Dutch tenancy agreement between the main tenant and the landlord ends

A subtenant does not rent from the owner (landlord) of the property, but from the main tenant in The Netherlands. The subtenant, in principle, does not have rights and obligations towards the landlord in The Netherlands. If the Dutch rental agreement between the landlord and the main tenant ends, the Dutch rental agreement between the main tenant and the subtenant also ends, according to Dutch rental law. Is it possible for the sub tenant to stay in the property regardless?

What circumstances influence my rights as a subtenant in the Netherlands?

What happens once the rental agreement between the main tenant and the landlord ends depends on several factors. This means that some subtenants will be able to stay in the rental property while others will be forced to leave.

The following circumstances are relevant:

– Does the subtenant rent a self-contained or non-self-contained accommodation?

– Does the subtenant have his/her main residence in the rental property?

– Why did the rental agreement between the main tenant and the landlord end?

Whether the accommodation was sublet to you legally or illegally, usually, does not play a role. The aforementioned factors will be discussed in more detail in the remainder of this article.

Subtenant of an independent living accommodation (rental of a house or apartment e.g. in Amsterdam)

If the tenant is renting an independent living accommodation and the subtenant has his/her main residence there, the subtenant will be able to remain in the residence. The landlord takes the place of the main tenant. That means that the subtenant will now rent directly from the landlord. This same rule applies even if the accommodation was illegally sublet to the subtenant by the main tenant.

If the landlord wants the subtenant to leave the property the landlord can initiate court proceedings within 6 months after the rental agreement with the main tenant has ended. The court will only terminate the tenancy agreement if one of the following situations applies.

The subtenant does not have sufficient financial resources to (continue to) pay the rent

The landlord must demonstrate that the subtenant has insufficient financial means to be able to pay the rent (or to continue to pay it). If the subtenant already has rent arrears, then that is an important indication that the subtenant does not have sufficient financial resources to pay the rent. This situation will not often occur in the case of social housing, because a subtenant will usually already have sufficient financial resources to be able to continue paying the current rent in part because the tenant will receive rental allowance (huurtoeslag) from the government.

The subletting was entered into with the intention of giving the subtenant the position of main tenant

This situation will mainly occur if the main tenant terminates the rent with the landlord. In that case, his/her tenancy agreement will end, but the subtenant will, in principle, be able to continue living in the residence. The time that has elapsed between the start of the subletting and the termination of the main tenancy plays an important role in whether the landlord will be able to successfully terminate the rental agreement. The shorter this period is, the sooner it is assumed that the subletting agreement has been entered into in order to actually place the subtenant in the position of main tenant.

Based on all the circumstances of the case, the lessor cannot reasonably be expected to allow the rent to continue

This may mean that it would be unreasonable and unreasonable for the rent to continue. This may occur, for example, if the landlord suffers financial disadvantage as a result of the situation. Or if the rented accommodation is specifically intended for senior citizens, whereas the subtenant cannot be qualified as such.

The rental property is intended for social housing and the subtenant is not eligible for this type of housing

In order to be able to rent a social rental home, a tenant must have a housing permit. An income limit applies to obtaining a housing permit. If a tenant’s income is too high, the tenant is not eligible for a housing permit.

This requirement also applies if a subtenant wishes to continue the rent after the main tenant has ceased to be a tenant. In that case too, the subtenant must have a housing permit. If the subtenant is not eligible for a housing permit, the lessor can have the rent terminated by the court.

Non-self-contained housing

If a tenant rents a non-self-contained residence (without a lockable front door, kitchen and/or bathroom), the subtenant cannot claim continuation of the rent. However, the subtenant may be entitled to a financial compensation from the main tenant. Whether this is the case depends on the reason why the main rent has ended. 

The landlord has terminated the rent

If the landlord terminates the rent with the tenant in Holland, the subletting will also automatically end on the day the main tenancy is terminated. The main tenant will often not simply agree to terminate the tenancy agreement. 

If the main tenant does not agree to the termination, the landlord will have to ask the Dutch cantonal court to terminate the rental agreement. During these proceedings the court will weigh the landlord’s interests in the event of termination of the tenancy against the interests of the (main) tenant and any subtenants in the event of continuation of the tenancy. 

The main tenant has an obligation to sufficiently represent the interests of the subtenant. For example, by not simply agreeing to the termination or by involving the subtenant in court proceedings. If the main tenant does not do enough to look after your interests as subtenant, he may have to pay damages.

Other reasons for termination (rescindment by the landlord or termination by the main tenant)

If the main tenancy ends due to rescindment or because the main tenant has given notice of termination, the sublease agreement will not automatically end. In these situations, the tenancy agreement between the subtenant and the main tenant will continue. However, the subtenant does not have any rights towards the landlord which means that the subtenant will be obliged to leave the rental property.

The main tenant is obliged to make the accommodation available to the subtenant. Because he is no longer able to do so, he is in breach of his obligations towards the subtenant, which means that the subtenant’s lawyer can claim a financial compensation from the main tenant.

Conclusion

As can be seen from this article, it strongly depends on the circumstances of the case whether a subtenant is allowed to continue living in the residence after the main rental agreement has ended. If the subtenant is renting a non-self-contained residence, he/she will have to leave the Dutch residence. If the subtenant is renting independent living accommodation, he/she will in principle be able to continue living in the residence. 

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