With so-called "intermediate tenancy", a house is rented temporarily because the landlord, for example, is abroad for study or work and wants to live there himself again after the end of the contract. This form of temporary letting is also called a lease with a "diplomatic clause". The North Holland District Court recently addressed the question of whether the tenant can terminate such a contract prematurely.
In the case before the North Holland District Court, the landlord had to go abroad temporarily for his work and was looking for a tenant for his house for this period. A tenancy agreement was concluded with the heading: "Tenancy agreement for a fixed period (interim rental)". The contract further stipulated that the landlord wished to occupy the property himself again after two years, as referred to in Section 7:274 (1) under b in conjunction with Section 7:274 (2) of the DCC (interim lease); that there was no question of a fixed term lease of no more than two years as referred to in Section 7:271 (1) of the DCC and that the parties could not terminate the lease before 13 August 2021.
The tenant nevertheless terminated the lease as of 1 January 2021. The landlord disagreed and claimed, inter alia, a declaratory judgment that the lease contract would end on 13 August 2021 and payment of the rent until that date.
The judge came to the following opinion:
"In this case it comes down to the assessment of the question whether the interim rental agreement must be qualified solely as a rental agreement pursuant to Section 7:274 (1) under b in conjunction with Section 7:274 (2) of the DCC or also as a rental agreement that does not last longer than two years and that can be terminated prematurely by the tenant pursuant to Section 7:271 (1) of the DCC. The Subdistrict Court held that this was exclusively an interim rental contract that could not be terminated prematurely by the tenant. The Subdistrict Court substantiated this opinion as follows.
From the text of the lease it is clear that the parties intended to conclude an interim lease within the meaning of Section 7:274 (1) under b in conjunction with Section 7:274 (2) of the DCC. This is also in line with the circumstance that [plaintiff sub 1] et al. would stay abroad for a period of approximately two years and wanted to return to the house afterwards. In such an intermediate tenancy situation, both the landlord and the tenant may only give notice of termination of the lease at the end of the agreed term (and not before). A lease for two years or less to which Article 7:271 paragraph 1 of the Civil Code applies cannot be terminated prematurely by the landlord either. However, the tenant is entitled to terminate the lease prematurely and does not have to serve out the agreed term. This cannot be deviated from by agreement.
The question now is whether in this case there is a concurrence between a lease based on a diplomatic clause (pursuant to Section 7:274 subsection 1 under b in conjunction with subsection 2 of the DCC) and a lease for two years or shorter (pursuant to Section 7:271 subsection 1 of the DCC). The relationship between both statutory regulations was not discussed during the creation of the Rental Market Transition Act 2015, in which Section 7:271 (1) of the DCC was introduced, but it is clear that the purport of both regulations is different (cf. Parliamentary Papers II 2015/16, 34373, 3, p. 12 and 17-18 and no. 216). It follows from this that it was not the intention to exclude the applicability of Section 7:274 (1) under b in conjunction with Section 7:274 (2) of the Dutch Civil Code to fixed-term rental agreements of up to two and up to five years respectively. After all, any other interpretation would lead to unacceptable situations, for example that tenants would be allowed to give notice in the case of a tenancy of up to two years, but not in the case of a tenancy of two years or longer.
In view of the above, it must be assumed that parties wishing to enter into a lease with a diplomatic clause for a maximum period of two years may exclude the applicability of Article 7:271 (1) of the DCC. It follows from the text of the lease that the parties have explicitly opted for a lease pursuant to Section 7:274 subsection 1 under b in conjunction with subsection 2 of the DCC and have also explicitly excluded the applicability of Section 7:271 subsection 1 of the DCC. Furthermore, they have expressly excluded the possibility of premature termination. This therefore means that [defendant sub 1] c.s. could not and could not give notice of termination of the lease contract in this case and that the lease contract will not end until 13 August 2021.”
The tenant therefore drew the short straw here and had to continue paying the rent until the agreed date.
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