Rent indexation clauses for residential accommodation: current situation

The Supreme Court ruling of 29 November 2024 (ECLI:NL:HR:2024:1780) clearly defined the legal position regarding indexation clauses in liberalised residential accommodation. The Supreme Court ruled that a clause containing both CPI indexation and a surcharge clause can be split. CPI indexation is considered fair in principle because it is transparent and only corrects for inflation. Surcharges are subject to a much stricter test: a surcharge of up to 3% above CPI is still acceptable, but higher surcharges are generally considered unfair and therefore voidable.

Despite the clarity provided by the judgment, a number of fundamental questions remain unanswered: for example, it is unclear whether an indexation clause should be regarded as a core clause and therefore subject to limited review, while there is also a lack of clarity about the scope and limitation period of repayment claims in the case of unfair surcharge clauses. Nor does the judgment provide any guidance on the practical breakdown of compound annual increases or on the assessment of the cumulative effects of multiple price clauses within a single agreement. In addition, it remains unclear how the possibility of termination should be weighed in a tight housing market, whether the assessment may differ per rental segment, and whether a voided surcharge clause can be replaced by a reasonable arrangement.

Criticism of the ruling emphasises that the Supreme Court may have interpreted Directive 93/13/EEC too cautiously, while the European Court of Justice appears to be considerably stricter by focusing on the combined impact of all terms, full prior transparency and the absolute prohibition of judicial “remedies”. This creates the impression that the European standard is tougher than the approach taken by the Supreme Court and that the Dutch line in future cases may have to shift towards this stricter European interpretation.

Since 29 November 2024, the Supreme Court's ruling has been frequently applied in lower courts. Here are a few recent examples:

• Rotterdam District Court, 6 February 2026: surcharge clause of 4.1% unfair
• North Holland District Court, 27 February 2026: surcharge clause of 2.4% fair
• Amsterdam Court of Appeal, 27 January 2026: surcharge clause of up to 5% not necessarily unfair. Even with such a clause, all relevant circumstances at the time of concluding the agreement must always be taken into account in the assessment of each individual case. These include (i) the transparency of the clause and the (lack of) grounds for applying the surcharge, (ii) the extent to which the surcharge clause meets the descriptions in the indicative list in the Unfair Terms Directive, (iii) the extent to which the balance is disrupted in violation of good faith, (iv) the nature of the agreement, and (v) other aspects. In this case, the surcharge clause is unfair.

At the end of 2025, an Amsterdam magistrate announced his intention to refer preliminary questions to the European Court of Justice. If this happens, the consequences could be far-reaching for landlords of residential properties. The parties involved in the proceedings were first given the opportunity to comment on the intention. Nothing has yet been published to indicate that the magistrate in question has already referred the questions, but it cannot be ruled out that this will still happen. In any case, it will cause quite a stir.