Claim to Terminate a Lease of Business Premises, 2
In our newsletter of January 2008 we discussed the
judgment of the Arnhem Court of Appeal and
its consequences. In this case the question was addressed
whether there is a certain term within which a lessor must bring
a claim for termination of the lease of business premises within
the meaning of Section 7:295 (2) of the Dutch Civil Code
("BW").
What was this case about? Hendriks rented a shop from Aldi
Vastgoed B.V. in Zutphen. On 2 December 2005 Aldi Vastgoed had
given Hendriks notice of termination of the lease as of 1 January
2005 on the legal ground for termination of 'urgent own
use'. Because Hendriks did not consent to the termination of
the lease, on 21 July 2005 Aldi Vastgoed brought an action based on
Section 7:295 (2) of the BW before the Subdistrict Court and
requested that the lease between the parties be declared to have
ended as of 1 September 2005. The Subdistrict Court allowed the
claim of Aldi Vastgoed. However, in the appeal proceedings that
followed the Arnhem Court of Appeal declared Aldi's claim
inadmissible, because of the fact that Aldi had only taken this
claim to court after the notice period had expired. For
this reason the Court of Appeal deemed the termination to have lost
its effect.
The Supreme Court
Aldi Vastgoed appealed to the Supreme Court against this
judgment of the Arnhem Court of Appeal. Aldi Vastgoed's
position was that it is an incorrect starting point that a lessor
has to bring its claim for termination before the time as
of which notice was given, or else the termination loses its
effect.
The Supreme Court held that the law sets no term within which a
lessor has to bring a claim for termination of the lease based on
Section 7:295 (2) of the BW. It cannot be derived from the system
of the law either that the termination of the lease of business
premises loses its effect if a claim to that effect is brought
after the time as of which notice was given. The Supreme
Court concluded that Aldi Vastgoed had not brought its claim for
termination late, and quashed the judgment of the Arnhem Court of
Appeal.
What does this mean for practice?
In its judgment of 3 July 2007 the Arnhem Court of Appeal found
that a claim for termination that is brought after the date as of
which notice was given was not brought in time. The lease did not
end as a result of this termination, but was automatically renewed
for a period of at least one year, but usually five years. With the
recent judgment of the Supreme Court, this line - discussed in the
newsletter of January 2008 - has been superseded. The law sets no
term within which a lessor has to bring a claim for termination of
the lease on pain of the loss of the effect of the termination. A
lessor who loses sight of the date as of which notice was given -
for example because he is still negotiating with the lessee about
the conditions for agreement to the termination - is not simply
bound by a new term of lease if the lessor has not brought a claim
for termination before that date.
The other side of the opinion of the Supreme Court is that a
lessee who does not agree to the termination of the lease may still
be confronted with proceedings for termination after the time as of
which notice of termination of the lease was given. The lessee will
have to take this into account in the course of his business
operations. Normally speaking, both parties will have an interest
in obtaining clarity at some point as to the time at which the
lease has or has not ended. After all, a lessor does not give
notice of termination of a lease for nothing.