Of course the model is still just that – a model that serves as a basis for the negotiations that eventually will result in the actual lease. Below I will review some important differences compared to the 2003 version.
- The new model leaves room for a preamble. As the old version did not have this option, the preamble was often disregarded;
- The lease should state whether or not the lessee has received an energy label;
- The lease should also lay down the effects on the rent of discrepancies in the area measurements;
- The lease should furthermore record whether the lessor/lessee is aware of asbestos or contamination. This provision is intended primarily to remind the parties that they should make specific arrangements about this subject;
- The notice period is no longer one year by default; the model leaves room for a lessee’s option;
- The VAT provisions have been adjusted to current legislation. A distinction has been made between VAT loss on the costs of exploitation and the total costs of construction. Compensation for VAT loss on the total costs of construction is no longer due after expiry of the adjustment period;
- Article 8 now includes the statement that the parties have not agreed on any incentives other than set out in the lease;
- Article 9 contains a ‘green’ provision by which the parties seek to achieve sustainability in their actions;
- The bank guarantee or deposit should be provided at least two weeks before commencement of the lease and no longer upon the signing of the agreement.
Besides the lease the general terms and conditions have also been revised and extended. Below an overview of the main changes.
- The penalty provisions towards the lessee are more lenient. Late payment of the rent is still punishable by a penalty but the penalty percentage has been reduced from 2 to 1% of the rent due;
- The lessee may sub-lease or grant the use of the property to a group company without the lessor’s consent;
- The limitation of the lessor’s liability for damage due to defects has been reduced;
- A commencement date has been added for the statutory time limit for settlement of the service charges;
- The penalty provision no longer applies to breach by the lessee of any obligation under the lease and/or general terms and conditions but is confined to breach of four general provisions.
Unfortunately, the new model (again) does not provide for future adjustments to the market rent. Parties are entirely free to make their own arrangements.
In short, the new model is more lessee-friendly than the previous one, and incorporates topical issues like asbestos and the environment. Not exactly innovative, the new model is an update rather, taking account of current market conditions.
Silvia Domínguez Saínza
dominguez@slangen-adocaten.nl
10 March 2015
