The new ROZ model rental agreement for residential accommodation

On August 12, 2024, the Dutch Council for Real Estate (Raad voor Onroerende Zaken – ROZ) published a new model tenancy agreement for residential rental properties, along with the updated General Terms and Conditions. The previous version dated back to 2017 and was mainly driven by the introduction of the Rental Market Transition Act, which enabled temporary rental of residential property.

Due to the recent enactment of the Fixed-term Tenancy Contracts Act, temporary rental agreements for residential housing are now largely a thing of the past. And this is certainly not the only legal development in Dutch tenancy law — both the Good Landlordship Act and the Affordable Rent Act have also come into force, significantly impacting the rental of residential properties. Add to that the ongoing debate about rent increase clauses and potentially unfair terms in tenancy agreements, and the time was clearly ripe for a new model rental agreement.

Changes to the ROZ model tenancy agreement

Duration of the Tenancy Agreement

First, the preamble (under the section: “WHEREAS”) of the model agreement has been revised. The 2017 version offered four options for the duration of the tenancy agreement. Landlords could choose between:
i) an open-ended contract without a minimum term,
ii) an open-ended contract with a minimum term,
iii) a fixed-term contract up to two years for self-contained units and up to five years for non-self-contained units, and
iv) a fixed-term contract longer than two years (or five years for non-self-contained units).

Since temporary rental of residential housing is now largely no longer permitted, the preamble has been adjusted. Only two options remain: an open-ended agreement without a minimum term and an open-ended agreement with a minimum term.

Suspension of Handover by the Landlord

Article 3 now includes a clause allowing the landlord to suspend the handover of the property if the tenant has not yet fulfilled their obligations under the agreement. For instance, if the first rent payment or security deposit hasn’t been paid, the landlord can withhold access to the property. Importantly, this does not affect the start date of the lease or the obligations arising from the agreement.

Rent Increase Clause Left Unchanged — Pending Supreme Court Decision

Unsurprisingly, Article 5.2 concerning rent increases for high-end rentals remains unchanged. The ROZ is awaiting a decision from the Dutch Supreme Court on preliminary questions regarding indexation clauses.

Over the past year, landlords have frequently run into trouble when subdistrict judges assessed rent increase clauses against European consumer protection laws. These clauses were often deemed unfair under the Unfair Terms in Consumer Contracts Directive. This could lead to the annulment of the clause, potentially resulting in a reversion to the original rent amount without any possibility of future increases—and even the obligation to refund past increases.

In January, a subdistrict judge referred questions to the Supreme Court. The Advocate General has advised that rent increase clauses be split into two parts: an indexation clause and a surcharge clause. The indexation clause is not under dispute. Regarding the surcharge, the AG concluded that a maximum 3% surcharge would generally not be considered unfair. It remains to be seen whether the Supreme Court will follow this opinion, and the ROZ is awaiting the outcome.

Other Changes to the ROZ Model Tenancy Agreement

Additional changes include:

•  The requirement to use the property as a principal residence has been included as an optional clause in Article 1.2.
•  An energy performance fee has been added as an optional clause under Article 4 (payment obligations).
•  Article 6 now makes a clearer distinction between utilities with individual meters and those without.
•  In line with the Good Landlordship Act, Article 10 now states that the security deposit may not exceed twice the monthly rent.
•  The penalty clause (Article 11) has been revised to state that if a single violation could result in multiple penalties, only the highest penalty applies.
•  Terms like “non-liberalised” and “liberalised” have been replaced with more accessible terms such as “lower” and “mid-range” rental segments.

Changes to the General Provisions

The changes to the General Terms are not particularly drastic, but worth noting:

•  The profit-sharing clause has been removed from Article 1.1. Because this clause, in conjunction with contractual penalties, could be considered unfair, it has been deleted. Landlords can still claim profit-sharing under statutory provisions.
•  The responsibility for obtaining and maintaining necessary permits (e.g., a housing permit) is placed on the tenant, who must also cover the costs.
•   The clause stating that the property is delivered in good condition at the start of the tenancy has been deleted. Instead, the condition must be documented in a handover report. Landlords cannot bypass this by stating in the contract that the property was delivered in good condition. If there is no report, the law assumes the property is in the same state at the end of the tenancy as at the beginning—placing the burden of proof on the landlord, which is often difficult in practice.
•  A new clause allows landlords to periodically inspect the property. The tenant is expected to cooperate. However, it is unclear whether this clause will hold up in court, as landlords may only enter the premises in specific circumstances. Tenants are entitled to quiet enjoyment and privacy.
•  The clause allowing landlords to pass on extrajudicial collection costs (e.g., legal summons or procedures) has been removed, as courts often consider such clauses to be unfair.

Conclusion

The changes to the ROZ model tenancy agreement for residential rental properties are not particularly dramatic, but they were necessary. The sector is now waiting for the Supreme Court’s answers on rent increase clauses. Once those are known, Article 5.2 can be amended accordingly.