Vacancy damages in the event of tenant bankruptcy? Current status.

Most landlords of real estate agree on a bank guarantee with the tenant. Only when the tenant goes bankrupt does the question of what damages can actually be claimed under this guarantee arise.

The Supreme Court has now handed down a number of rulings on vacancy damages resulting from the tenant's bankruptcy and/or that they can be claimed under the bank guarantee. But what is the actual situation?

The moment a tenant goes bankrupt, the trustee in bankruptcy can terminate the lease under Section 39 Fw. The Supreme Court ruled in 2011 that a notice of termination under article 39 Fw is a regular way of terminating a lease. This means that no right to compensation can arise against the estate for loss of rent due (after the termination period). The Supreme Court also ruled that this does not change if such a right to compensation is included in the lease agreement.

After that, things remained quiet for a while. In 2013, the Supreme Court commented further on the aforementioned matter. In the Romania judgment (HR Nov. 15, 2013, NJ 2014/68), the Supreme Court ruled that what it had determined in its 2011 judgment related only to the landlord/property relationship. The Supreme Court also ruled that a claim based on vacant possession damages cannot be submitted to the receiver for verification or otherwise charged to the estate. However, if a third party has stood surety for all that the tenant owes, then in principle payment must simply be made at the first request of the landlord, unless otherwise agreed.

Nor did it stop there. Earlier this year, the Supreme Court took the position that a landlord is not unjustly enriched by claiming under a bank guarantee in the event that the bank has guaranteed to the landlord to compensate, as its own debt, the damage suffered by the landlord as a result of the lease being terminated by the receiver in the event of bankruptcy. Not even if the bank has had recourse against the estate through a counter-guarantee.

However, it is still unclear whether a landlord can now always claim under a bank guarantee. The answer to that question should be in the negative. The starting point is the text of the (bank) guarantee and the text of the lease. An obligation to pay compensation for damage caused by vacancy must be laid down in the lease or in the guarantee, since this liability does not follow from Section 39 of the FW.

It is therefore very important to pay close attention to ensuring that the text of the bank guarantee provides adequate guarantees. In practice, the (ROZ) model prescribed by the landlord is often used. It appears that the text of the bank guarantee as included in this model often offers insufficient guarantees. This subsequently leads to the need to provide an additional guarantee for claims that were not covered by the earlier bank guarantee.

If you, as a landlord, require a bank guarantee and want to be sure that in the event of bankruptcy you will be compensated for your losses, get expert advice on this.