"Flex spaces"
In our real estate practice, landlords increasingly have questions regarding the rental of flexible workplaces. There is an increasing need for flexible office space from, for example, independent business owners . These business owners are not waiting for a rigid contract to which they are tied for years. They would much rather have an agreement under which they rent an office in a collective office building for a shorter period of time, with ample termination options. It is expected that after this corona era, these contracts will show an increase.
ROZ model for office space
Landlords usually use the model for office space of the ROZ (the Association for Real Estate). Since this model focuses on long-term leasing, it is not particularly well suited for leasing workplaces in a collective office building. For example, the model provides for agreements on sublease, service costs and a maintenance division between landlord and tenant. These are agreements that are not appropriate if a tenant wishes to rent an office or workplace for a period of, say, three months. Or for a tenant who wishes to rent three workstations one week and ten the next.
Rental agreement for flex space: customization
Given the above, it is advisable to have a separate lease agreement drawn up in the case of the rental of flex spaces. Depending on the wishes of the lessor and the needs of his potential tenants, this lease can include customized agreements. For example, a notice period of one week, a fixed service charge per square meter of office space and an option scheme for renting additional workplaces within the building. If a lease is entered into with a tenant, the tenant in principle enjoys eviction protection. This means that a tenant does not have to vacate the leased property immediately after the expiration of the lease term. For landlords, this is not attractive in some cases, as it does not fit their flexible office concept.
Qualification customization agreement
Landlords think they can get around eviction protection by putting "service agreement" above the agreement. For the qualification of a lease, however, it does not matter what name the parties gave the agreement. The content of the agreement is decisive. Often a closer examination of the contract will reveal that it is an agreement that has both elements of rent and elements of service.
What matters in answering the question of rent protection is which element predominates. This obviously varies from case to case. After all, the use of a desk in a fixed location for a somewhat longer period of time tends more towards a rental agreement than a flexible office space that is booked on a half-day basis. Tax law can also have implications as to whether an agreement is considered a service or a rental.
It is therefore important for landlords to know that even if a type of agreement other than a lease is used, the user may still be entitled to rent protection in some cases. The law does not (yet) provide a regulation regarding the rental of flexible office spaces. Case law on this point is also still scarce. Landlords would therefore do well to take this into account when drafting contracts.
