A tenant who has not paid rent for months and has ceased business operations runs the risk of being evicted from the premises. Even if the tenant has invested substantial sums in the business and hopes to transfer it to a third party, this does not necessarily prevent eviction. This follows from a recent judgment of the District Court of Overijssel dated 18 September (ECLI:NL:RBOVE:2026:5560).
What were the facts of the case?
The landlord had let commercial premises to a general partnership with effect from 1 March 2023. The premises in question constituted commercial premises within the meaning of Section 7:290 of the Dutch Civil Code, together with a manager’s residence on the second floor that was dependent on the commercial premises. The premises were intended for the operation of a restaurant.
During the course of the tenancy, a substantial rent arrears arose. The last payment, amounting to €1,000, was made on 22 March 2026. The landlord had received no further rent payments since then. Furthermore, the restaurant had since ceased trading.
The landlord saw this as grounds to seek eviction from the premises in summary proceedings. In addition to the rent arrears, she pointed to other breaches, including poor maintenance, noise nuisance and the installation of a conservatory without a planning permission.
The tenant opposed the sought eviction. She argued, amongst other things, that the problems had arisen partly due to the landlord’s actions. Furthermore, she claimed to have invested over €130,000 in the business and the leased premises. In her view, an eviction would make it impossible to transfer the business to a third party.
The tenant also argued that, in the statement of claim, the landlord had sought only the eviction from the residential part of the property, whilst the tenancy agreement covered both commercial and residential premises.
Legal framework
Firstly, the magistrate assessed whether it was sufficiently plausible that the tenancy agreement would be terminated in proceedings on the merits.
A cautious assessment framework applies to the granting of an eviction claim in summary proceedings. Eviction may be granted if it is highly probable that the tenancy agreement will be terminated in proceedings on the merits. As this is a provisional procedure, there is, in principle, no scope for an extensive examination of the facts or further evidence. The subdistrict court judge therefore bases the decision on facts that are acknowledged or uncontested, or which have, for the time being, been established as plausible.
Judgment of the court
It was not in dispute that two key obligations under the tenancy agreement had been breached: the timely payment of rent and the actual use of the premises in accordance with the agreed purpose.
The magistrate considered these breaches to be sufficiently serious. The other breaches cited by the landlord, including poor maintenance and noise nuisance, therefore did not need to be discussed further.
According to the tenant, however, the breaches had arisen partly due to the landlord’s actions. In doing so, she apparently sought to argue that the problems could not be entirely attributed to her. The magistrate did not accept this argument. For the termination of a contract, it is not required that the breach be attributable to the debtor (see Article 6:265 of the Dutch Civil Code: a breach entitles the aggrieved party to termination in principle, unless the particular nature or minor significance of the breach does not justify termination and its consequences).
The magistrate then assessed whether the eviction, pending a possible termination, should in fact be granted.
The tenant argued against this, on the grounds that she would no longer be able to transfer the business – in which she had invested over €130,000 – to a third party if she were now forced to vacate the premises.
The magistrate did not agree with the tenant on this point and held that the landlord’s interest in eviction should outweigh the tenant’s interest in retaining a potential opportunity for a takeover. There was, in fact, no concrete prospect of a candidate willing to take over the business. Nor had it been demonstrated that the tenancy agreement could actually be taken over, for example through a subrogation procedure (Article 7:307 of the Dutch Civil Code).
The court also rejected the tenant’s defence that the landlord had sought eviction from ‘the dwelling’, whilst the leased property consisted of commercial premises with an ancillary staff accommodation.
It was sufficiently clear from the summons that the landlord intended to seek eviction from the entire leased property. It was also apparent from the substance of the tenant’s defence that she had understood this. In this regard, the subdistrict court judge referred to the judgment of the Supreme Court of 12 January 2024 (ECLI:NL:HR:2024:22): When interpreting a claim, one must not only take account of its wording, but significance must also be attached to the substance of the grounds on which the claim is based, the manner in which the other party has understood the claim and should reasonably have understood it, and the rest of the proceedings between the parties.
The subdistrict court therefore granted the application for eviction and ordered the tenant to vacate the premises within fourteen days of service of the judgment.
Conclusion
This case demonstrates that a landlord faced with substantial rent arrears combined with the cessation of business activities is well placed to seek eviction from the leased premises in summary proceedings.
A tenant wishing to rely on circumstances that should prevent eviction, such as a potential transfer of the business, must substantiate those circumstances in concrete terms.
Would you like to know more about the obligations arising for tenants and landlords from a tenancy agreement and/or the options available to you if an obligation is not fulfilled? Please feel free to contact one of our solicitors without obligation. We would be happy to assist you!
Marion van Acker, LL.M.