Do’s and don’ts with the ROZ model
In early April, special meetings were held at NautaDutilh for the firm’s clients and members of VGM NL. The meetings addressed the most significant differences between the new ROZ model lease and general provisions published in February 2015 and the model dating from 2003.
The ROZ (the Dutch Real Estate Council) explained the background of the model lease and the basic principles for drafting the new model. Although the ROZ model is still a ‘landlords’ model’ that is primarily intended to serve the interests of property owners, most of the changes implemented skew in tenants’ favour – particularly as a result of the addition of a reasonableness requirement to the general provisions.
Several sections of the new lease will require more reflection, since the new version contains more options than the 2003 model. Certain elements of the lease and the general provisions are clearly compromises, however. This is evident in Clause 9, for example, which refers to asbestos, and Clause 10, which refers to sustainability. Parties using the new lease would be wise to negotiate what they actually wish to agree with regard to these matters and to adjust the text accordingly.
Compromise is also evident in the general provisions, a prime example of which can be found in Clause 6, which regards subletting. Tenants wanted a full right to sublet and landlords wanted no right to sublet, as provided in the 2003 version. Subletting is now permitted for group companies as defined in Section 2:24b Dutch Civil Code, and these groups may be quite large. Parties should thus be especially on the alert if changes occur in the tenant’s group.
The provision regarding a completed environmental study (Clauses 6.8.1 and 6.8.2 of the 2003 model) are absent from the new model. In those cases in which soil contamination might be an issue and the parties have chosen to attach a baseline report, it would be advisable to include a soil contamination clause in the special provisions.
A damages clause relating to premature termination is also absent from the new model. Although this type of clause does not guarantee that vacancy-related losses can be recouped, they definitely cannot be recouped without such a clause. In contrast, Clause 24 of the general provisions for retail space dating from 2012 does include such a clause.
Finally, many parties seem to believe that the ROZ model is a standard, ready-to-use lease. While that is not the case, they can use the ROZ model as a basis for negotiating the terms of their own lease.