Tenancy law and franchise: approval of deviating terms in the tenancy agreement, despite material infringement and the lack of an equal social position between the tenant and landlord

franchisor, franchisee, lessee 

The District Court of Rotterdam recently ruled in a rental case in which the landlord, Markthal Rotterdam BV, requested approval of a number of deviating rental clauses in the rental agreement with its tenant.

A deviating clause will only be approved if the clause does not materially affect the rights that the tenant derives from Section 7.4.6 or if his position in society compared to that of the lessor is such that he does not reasonably need the protection of Section 7.4.6.

This judgment of the Rotterdam District Court can be called special because in the present case there is indeed a substantial infringement of the tenant’s rights and the lack of an equivalent social position. The decisive factor for the approval by the subdistrict court was that, despite the deviating stipulations, the rights of the tenant are still sufficiently guaranteed by the landlord, partly due to the long term of the lease, the limited investments by the tenant and the undertaking by the landlord to offer replacement business space at the end of the lease.

Franchisors/landlords regularly ask the subdistrict court for approval of deviating clauses in the lease, for example because they want to link the term of the lease to the term of the franchise agreement or the term of the main lease. The fact that there is no equal social position between the franchisor/landlord and the franchisee/lessee is undisputed and unchangeable. What a franchisor/landlord can do to obtain approval is to ensure that there are sufficient guarantees for the franchisee/lessee. Both during the term of the rental agreement and afterwards.

Mr AC van Engel – Franchise lawyer  

Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Mail to vanengel@ludwigvandam.nl