The ROZ model Shop Space is widely used for various business premises in retail. More than ten years after the most recent model (from 2012), the ROZ is coming out with an updated version of the lease agreement for retail space. In doing so, the accompanying general provisions have also been changed. Nika Niels takes you through the most important changes in the general provisions belonging to the ROZ model Lease Agreement Retail Space 2022.
This article explains more about this infographic depicting the 6 most important changes.
The 6 most important changes from the ROZ Model Retail Space
1. Removal definition deficiency
Whereas Article 2.1 of the general provisions used to contain a definition of a defect, this has been removed from the new general provisions. This means that if the tenant claims the existence of a defect, a connection to the law is sought.
Objective vs. subjective test
The law (Section 7:204 (2) of the Civil Code) provides that there is a defect if the leased property does not meet what the same type of tenant of the same type of location may generally expect. This comparison with other situations is called an objective test. As a landlord, you prefer a subjective test. This is when it comes to what the tenant could reasonably expect from this particular property at the start of the specific lease.
2. Penalty provision no longer sees transfer
Whereas previously Article 6.1 of the General Provisions stated that a tenant may not transfer its lease rights without the landlord's written consent, this has been moved to Article 6.3 in the new General Provisions. This new paragraph provides that such a prohibition on transfer without consent has property law effect.
However, Article 6.2 of the General Provisions contains the penalty provision that refers back to Article 6.1. Since the transfer of lease rights has now been moved to Article 6.3, this penalty provision therefore no longer covers the situation where the tenant transfers his lease rights to a third party without permission.
As a landlord, if you still want to attach a penalty to the transfer without consent, you will have to include it in the lease itself.
3. Renovation proposal
The presumption of a reasonable renovation proposal has been crossed out in the new general provisions. This is a positive deviation for the tenant, but slightly less positive for the landlord . Depending on the wishes of the parties, this can be deviated from in the lease agreement. The presumption of the reasonable renovation proposal must then still be included therein. So be alert to this. Parties fall back on the law without deviating agreements.
4. Supply of goods and services, service charges
In Article 21.6, the deadline for providing the service charge statement has been adjusted. This article shows that a service charge statement must now be provided to the tenant within 15 months instead of 12 months after the end of the service charge year.
If this is not possible for a landlord, he will have to let the tenant know with reasons. This applies not only to the final statement, but to every annual service charge statement.
5. Access and control
In article 25 of the general provisions it is newly included that the landlord is entitled to enter the rented property at a time to be determined in consultation with the tenant. This is to check whether the tenant is complying with the lease and the general provisions.
This is particularly intended to check that the leased property is not being used for illegal activities. The ROZ advises landlords to use this with some regularity.
6. Payments
Article 28.3 of the general provisions has been amended to clarify that ROZ does not envisage an accumulation of the minimum penalty of 300 euros per month. This means that a minimum monthly penalty of €300 per month does not apply for each month that is paid late, but that a monthly penalty of 1% with a minimum of €300 applies to the total amount paid late.
To illustrate this, the following calculation example:
Tenant is in default in January, February and March in paying the rent of 14,000 euros per month. Pursuant to Article 28.3 of the General Provisions, Tenant then owes the minimum penalty of 300 euros in both January and February. In March, the tenant's arrears reached 42,600 (three times rent plus twice penalty). This means that in March tenant owes a penalty of 426 euros (1% of 42,600) euros.
Other noteworthy changes
Energy Label
There is a whole new article (Article 8) in the general provisions that deals with the energy label. This article is quite far-reaching. Pursuant to this article, the tenant is not permitted to make any changes or additions in or to the leased property without the written consent of the landlord that would demonstrably worsen the energy performance stated in the energy label, which the landlord must also provide. The word "demonstrable" indicates that the burden of proof of this lies with the landlord.
In addition, the tenant indemnifies the landlord for third-party claims and for any consequences if as a result of the tenant's actions or omissions the energy performance deteriorates. However, it goes without saying that as a tenant you would rather not indemnify the landlord for all possible claims. Be alert to this.
Other taxes, levies and duties
Article 23.3 addresses the situation where there is no longer a distinction between an owner's portion and a user's portion. The landlord will reasonably determine the portion that should be borne by the tenant. If the parties do not agree on this, and cannot come to an agreement, it can be taken to court.
Under this provision, the tenant is not liable for payment of the portion for the tenant's account until the court rules. The question is whether this is workable for a landlord. If not, the landlord should make agreements on this with the tenant in advance and again stipulate this in the lease.
Personal data
A more extensive article has been included regarding personal data. This stipulates that the lessor must make clear for what purpose the personal data are processed by the lessor. Both parties will have to be alert to this. To this day, enforcement of this is still fairly limited, but it cannot be ruled out that at some point this will be enforced more strictly.
In the event that parties do not act as they should, a huge fine hangs over them and there is a strong possibility of naming and shaming; the public disclosure that you have not complied with privacy rules.
Conclusion
However, these are not all the changes that have taken place in the general provisions, leaving aside that there have also been changes in the model of the lease contract itself. Should you have any questions regarding the new model and the changes, our attorneys specialized in real estate and rental law will be at your service.
