Claiming damages for the loss/harm sustained by a lessor as a result of the lessee’s insolvency (i.e. ”loss owing to vacancy” [leegstandschade]) is an issue that comes up again and again. The Dutch Supreme Court has rendered a series of rulings on this matter, the most recent of which dates from 17 February 2017. On 3 July 2018, the Court of Appeal in The Hague delivered its judgment after the case had been referred back to it.
To remind you briefly about the case: Hansteen (the lessor) had become the lessor of Bouwgros as a result of a “sale-and-lease-back” transaction. Within the framework of that transaction, it was agreed that Bouwgros would furnish a bank guarantee, according to an agreed model, for an amount equal to 12 months’ rent. Bouwgros became insolvent and Hansteen requested payment pursuant to the bank guarantee, after which the bank (ABN AMRO) paid out. In the judgment rendered by the Court of Appeal, the issue came up of whether Hansteen was entitled to claim the loss owing to vacancy under the bank guarantee. The insolvency trustee disputed that, pointing out that neither the lease agreement itself nor the general terms and conditions forming part of that agreement stipulated that, in the event of premature termination of the lease, Hansteen would be entitled to compensation for loss owing to vacancy. According to the trustee, the text of the lease agreement did not provide any basis for such a claim for damages (and neither did the law, as follows from the rulings rendered by the Supreme Court).
The Court of Appeal found that when deciding whether loss owing to vacancy is covered by the bank guarantee, what matters is what the guarantor has guaranteed to the lessor. In the case concerned, an abstract bank guarantee had been furnished with clear content: the text of the bank guarantee left no doubt, according to the Court of Appeal, that ABN AMRO had irrevocably and unconditionally undertaken, as an independent commitment, to act as guarantor vis-à-vis Hansteen for everything that Bouwgros would owe pursuant to the lease agreement, and ABN AMRO had also committed itself to compensating Hansteen, as its own debt, for all loss/harm that Hansteen would sustain if the lease agreement were to be terminated prematurely as a result of insolvency. It was the latter that was relevant in the case concerned. This meant that Hansteen was within its rights to invoke the bank guarantee vis-à-vis ABN AMRO.
Whether Hansteen, as the lessor, and Bouwgros, as the lessee, had agreed that Bouwgros was liable for loss owing to vacancy was a matter of interpretation of the lease agreement. In the opinion of the Court of Appeal, that interpretation should be based on the “Haviltex standard”, briefly meaning that the question of how the parties’ relationship is regulated in a written agreement should be assessed not solely on the basis of a purely linguistic interpretation but that what matters is how the parties could understand the agreement in question in the given circumstances, and what they could reasonably expect of one another. Hansteen attached great importance in that context to the fact that a copy of the bank guarantee, as issued, was attached to the lease agreement and that the text of the bank guarantee had been negotiated between the parties. The insolvency trustee disputed the latter. The Court of Appeal concurred with Hansteen in that regard. The Court of Appeal was of the opinion that Hansteen could reasonably trust, on the basis of the facts, that Bouwgros (also) intended to provide Hansteen with a contractual entitlement to compensation for loss owing to vacancy. In the opinion of the Court of Appeal, the text of the bank guarantee left no doubt about that, while the bank guarantee was also attached to the lease agreement and there was a reference to it in Clause 6.1 of the lease agreement. It was therefore irrelevant that the lease agreement did not include a separate clause stipulating that the lessee would be liable for loss owing to vacancy.
The interpretation of the lease agreement by the Court of Appeal concerns this particular case. It therefore remains advisable to include a clause in the lease agreement to the effect that liability for loss owing to vacancy will ensue if a guarantee is furnished that covers such damage.
In recent years, many banks have already started to use bank guarantees according to their own model, with loss owing to vacancy being excluded. Loss owing to vacancy is also excluded in the new model bank guarantee drawn up by the Real Estate Council of the Netherlands (ROZ), as published on 4 June 2018. Nevertheless, the ruling rendered in the case concerned is an important one as regards situations in which a bank guarantee has been furnished on the basis of the “old” ROZ model or a corporate group guarantee with similar wording.