As an entrepreneur, you want nothing more than to focus 100% on your business. Most companies still need a location to do business in 2021. This means that problems can arise with the business premises. What if you rent a commercial property and it has a defect? Should the tenant or landlord pay for the repair costs?
A defect in the premises
Who has to repair the problem with the rented object (or have it repaired) depends on whether the problem is legally a defect. The law defines a defect as a condition or characteristic of the item or other circumstance not attributable to the tenant as a result of which the item cannot provide the tenant with the enjoyment that a tenant might expect upon entering into the agreement. For example, you may assume that the roof of your business premises is in good condition and will therefore not leak. If the roof does leak, then the leakage is a defect.
In principle, the landlord is obliged to repair defects. If the landlord fails to do so, he can be held liable for the damage caused by the defect. Please make sure that the tenant reports the defect in writing and in good time. If you fail to do so, the landlord remains unaware of the defect and you can be held liable for any consequential damage caused by the defect.
Landlord always responsible for repairing a defect?
In some cases, an exception is made to the rule that the landlord must remedy a defect. If repairing the defect turns out to be impossible, the landlord cannot be required to remedy it. This exception will not occur quickly. In such a case both parties have the right to dissolve the lease. In 2012, the Court of Appeal of Leeuwarden had to address the question of whether a burned down house could be included in this exception. The court ruled that the defect was impossible to remedy. It would not be a matter of repairing, but of completely renewing the leased property. In this case, the landlord was allowed to terminate the lease contract out of court.
Furthermore, minor repairs can be charged to the tenant. Examples are the replacement of a broken doorbell or the bolting down of banisters. Another important factor is the agreements made between the parties. The defects regulation is not mandatory law for business premises, so parties can make different agreements.
The landlord does not repair the defect
It may happen that the landlord refuses to remedy the defect in your premises. For the tenant, a number of options are open:
- Extra-judicial dissolution of the rental agreement;
- Claim a reduction in the rent from the court in connection with the defect;
- Advancing recovery;
- Claiming damages in addition to reparation;
- Suspending the payment of rent. Some caution is required with this option. If the tenant wrongfully suspends payments, the landlord can terminate the agreement.
Pay close attention to whether the lease contains any restrictions. Many standard models exclude matters such as rent reduction or suspension.
Compensation will not always be awarded. In addition to the presence of a defect (shortcoming), the defect must be attributable to the landlord. This is the case if the defect can be attributed to the lessor within reason. This is the case, for example, if the landlord does not maintain the business premises, as a result of which the defect arises. This does not include strict liability, however. Suppose the roof starts leaking without the landlord having caused this by his acts or omissions. In such a case, he is not liable for damages.
It can be difficult to see which solution is best for your situation and to estimate its chances of success. Please seek advice in good time. Do you have any further questions about the rules on defects or other questions about tenancy law as a result of the above? Please contact our specialists.
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