Supreme Court Clarifies Criteria for Termination Following Property Closure

Landlords who terminate a lease agreement out of court following a property closure under the Opium Act are in a significantly stronger legal position than previously thought. The exact standard had long been unclear, and the Supreme Court even formulated it incorrectly in November 2025. On April 10, 2026 (ECLI:NL:HR:2026:587), it corrected that error.

The error from November 2025

In its preliminary ruling of November 28, 2025 (ECLI:NL:HR:2025:1714), the Supreme Court had ruled that, in the case of an extrajudicial termination pursuant to Article 7:231(2) of the Dutch Civil Code, the court was required to apply the standard set forth in Article 6:265(1) of the Dutch Civil Code. In other words: Is the tenant’s breach serious enough to justify termination? That reasoning was incorrect. Article 7:231(2) of the Dutch Civil Code does not require any breach by the tenant at all. In this case, the termination is the direct consequence of a government action, namely the closure of the residence by the competent authority. The standard set forth in Article 6:265 of the Dutch Civil Code was not intended for such a situation.

The Correct Standard

The correct test is twofold. The court assesses whether the termination is unacceptable according to standards of reasonableness and fairness (Article 6:248(2) of the Dutch Civil Code) and whether the landlord has abused its authority (Article 3:13 of the Dutch Civil Code). For landlords who are not purely private parties (such as investors or housing associations), a proportionality test under Article 8 of the ECHR also applies: are the consequences of the tenant’s permanent loss of housing proportionate to the intended purpose?

Broader Discretion for the Landlord

In the case that led to this ruling, the housing association Eigen Haard had partly based its decision on its statutory duty as an authorized institution: promoting the quality of life in the neighborhood and combating drug-related crime. The Supreme Court upheld this. Landlords may therefore also take broader societal interests into account in their assessment, rather than solely their own financial interests. Public safety, the protection of the health of nearby residents, and the rights of other residents are legitimate goals that can justify an interference with the right to housing (Art. 8(2) of the ECHR). Practical consequence: the threshold for a tenant to successfully challenge the termination—by demonstrating that the termination is unacceptable or that the landlord has abused its rights—is considerably higher than under the erroneously applied test of Article 6:265 of the Dutch Civil Code.

Children’s Rights as the Primary Consideration

A point of attention in practice: if minor children also live in the residence, their interests must be taken into account as the “primary consideration” in the assessment, pursuant to Article 3(1) of the UN Convention on the Rights of the Child. This adds an additional layer of scrutiny that landlords may not overlook.