Unlike the previous 2012 model, the new model for 290 business premises includes a comprehensive regulation on sustainability. In principle, the parties thereby agree on sustainability measures in advance. Energy-saving measures that can be objectively recouped within five years must be taken by the tenant and at its expense, unless they concern measures to the shell or shell-plus. In addition, a future minimum energy label requirement for 290 business premises has been anticipated (which has already applied to office premises since 1 January 2023; see our earlier blog). Measures for the timely obtaining of the required energy label should also be taken by the tenant and at its expense, unless they concern measures to the shell or shell-plus. The parties must also consult on the possible impact of the landlord’s energy saving measures on the rent, taking into account the possible benefit to the tenant in terms of lower energy costs.
The landlord may not reasonably refuse permission for alterations and additions that the tenant wishes to make for the purpose of such energy saving measures. In return, the tenant must cooperate in any energy-saving measures that the landlord wishes to take, even if they affect the nature, extent and cost of the supplies and services to be provided by the landlord. Any such work will not constitute a defect, and the tenant is not entitled to a reduction in the rent, a reduction in any other payment obligation, full or partial dissolution (ontbinding), or compensation in connection with such work. From the tenant's point of view, this does go a bit far in some circumstances, since it is entirely possible that the performance of this energy-saving work will substantially limit the use of the leased property or the quiet enjoyment under the lease (temporarily or otherwise).
In response to the corona crisis and the Supreme Court's ruling of 24 December 2021 (ECLI:NL:HR:2021:1974) (see our earlier blog on this subject), the new model for 290 business premises provides that the parties must enter into consultation if the tenant suffers loss because the use of the leased property or the quiet enjoyment under the lease is substantially restricted as a result of generally applicable government measures of such a nature that it would be contrary to the rules of reasonableness and fairness not to amend the lease. However, unless the parties have agreed otherwise, the tenant’s payment obligations under the lease will remain unchanged. We expect that this new provision will often be part of the negotiations. If a tenant were to accept this provision as it stands, its position in the event of, for example, a new lockdown due to a new corona wave or other future pandemic would not be very strong. Tenants would therefore be wise to seek as specific an agreement as possible if they are adversely affected by general government measures.
In principle, the leased property is leased 'in a shell condition'. The new model for 290 business premises provides scope for a 'shell-plus' lease, where the details of the 'plus' may be agreed on: in other words, the items that are part of the leased property in addition to the 'shell', such as specific facilities or systems. If the parties wish to agree on a shell-plus lease, they should consider the consequences for, among other things: (a) the allocation of maintenance between the parties; (b) the handover obligation on termination the lease; and (c) the allocation of costs of energy-saving measures.
The new model for 290 business premises includes a provision that, in addition to the issue of asbestos, also addresses the issue of contamination at the time of signing the lease. In principle, the legislation that is in force at the time the lease is signed applies. If it is possible that contamination may be present in, on or at the leased property at the time the lease is signed, or that contamination may reasonably be expected to occur during the term of the lease, in light of the tenant’s business activities, it is advisable to make further arrangements concerning (a) the possible conduct of an investigation before the leased property is handed over to the tenant; (b) the taking of action to the extent required by that investigation and applicable legislation; (c) the possible conduct of an investigation on termination of the lease; and (d) the possible remediation of contamination that has occurred during the term of the lease.
The new model for 290 business premises also includes, among other things, an adapted regulation on opening hours, renovation of the leased property, and the application for a rent review.