Balance in world of rent: the new tenant variant of the ROZ model Retail space
When a retail space or catering premises is leased, it is customary to use the standard ROZ model Retail lease agreement. This model is therefore in most cases the basis for negotiations between tenant and landlord. Since the current model for retail space (from 2022) is very landlord-friendly, a special tenant variant of this ROZ model has been developed. In our experience, tenants are at a great disadvantage in negotiations and there is little room to negotiate. With the introduction of the tenant variant to the ROZ model Winkelruimte, tenants hope to ensure that there will be more balance during negotiations between landlord and tenant and that talks will proceed in a fair manner. After all, it is in the interest of both parties to have a balanced lease at the end of the negotiations.
The tenant variant of the ROZ model Winkelruimte offers more room for customization and adjustments specific to the needs of the tenant. In it, this means not only more flexibility, but also a better balance between the interests of tenants and landlords. We take you through the main features.
Key features
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Prevention in case of extreme rent increases
The tenant variant first provides for an adjustment of rent indexation to prevent extreme rent increases, including the introduction of a maximum indexation or graduated scale. Lease agreements almost always include the possibility of indexation, which can lead to substantial rent increases. This sometimes leaves tenants with unpleasant surprises.
If a maximum indexation (or graduated scale) is used, a ceiling of sorts is actually provided for the tenant, so it will be more predictable for a tenant as to what potential rent increase is coming his way.
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Alternative arrangement for fairer distribution of service charges between tenant and landlord
In the tenant variant, a landlord is only authorized to change the service charge according to type and extent or to drop it after written permission from either the service charge committee or shopkeepers' association, or the tenant himself. An adjustment of the advance payment is also subject to this prior written consent, whereby the landlord must also substantiate the adjustment with underlying documents.
In addition, this provision of the tenant variant regarding service charges provides for a number of new rights and obligations, such as an apportionment key if there are multiple tenants in a property. Also, the tenant variant provides for a right of inspection for the tenant. Such a right of inspection always existed, however, it was not mentioned in so many words in the lease itself. In addition, the tenant variant imposes an obligation on the landlord to test the market conformity of the service costs and, if there is reason to do so, to make new agreements with the contracting party for the supply of goods and services, or to contract with another (new) party.
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Responsibility for asbestos and contamination shifted to landlord
The entire provision regarding asbestos and contamination was considered very unreasonable by tenants. In the ROZ model Winkelruimte, the responsibility with respect to asbestos and contamination is placed entirely on the lessee, while this can pre-eminently be considered an owner's risk. Asbestos and contamination are located precisely in the shell or in the ground under the leased property. The landlord is (in most cases) the owner thereof and should therefore be responsible for its maintenance and safety, according to the tenants. This way, such a provision also cannot lead to inequality and unfair financial burdens, since tenants often have limited influence on the property and its condition, especially at the start of the lease. Therefore, the tenant alternative includes a provision in which the landlord gives guarantees.
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Sustainability
Of course, sustainability is also given due consideration. Article 15 of the tenant variant provides more flexibility for tenants regarding sustainability and any measures to be implemented. This includes a modified tenant consent rule for sustainability measures by the landlord. This stipulates that the tenant must reasonably cooperate with these sustainability measures. The tenant may refuse to cooperate if the implementation of the measures would require the tenant to remove, modify or replace changes or additions that have been made, or if, for example, the rented property would become a lot smaller as a result of the measures.
In addition, the sustainability measures added by the tenant will in principle remain in the leased property at the end of the lease, but a reasonable compensation must be paid by the landlord to the tenant. Of course, the tenant is also free to remove the facilities.
Incidentally, both parties do have an obligation to provide information in connection with legal reporting requirements. This means that both the tenant and the landlord are obliged to provide relevant information about any legal reporting obligations applicable to the leased premises, for example, the impact of the business on people and the climate. Indeed, both parties can better prepare for such reporting if certain information is available to both parties.
Conclusion
The introduction of the tenant variant of the ROZ model Winkelruimte could be a turning point in the world of leases and provide a fairer playing field for both tenants and landlords. However, the question is whether the tenant variant will actually be used in practice. What is clear is that landlords are most likely not eager to give away certain rights of landlords and obligations of tenants. Nevertheless, the tenant variant does provide more balance, exactly what tenants need today. Let's hope that with the advent of the tenant variety, tenants and landlords will work better together and thereby provide more balance in the world of leases.
