As a lessor, you need to keep a number of things in mind when you lease a commercial property to a Dutch private limited liability company, i.e. a “BV”.
The organisation and structure of the BV may change during the term of the lease, for example if there’s a change in the management, shareholders, or financial resources. Even though the internal organisation and structure of a BV may change, that does not affect the lease agreement entered into by the parties. The BV is the legal entity that is deemed to be the lessee.
As a lessor, you may run risks if the internal organisation of your lessee changes. That risk is partly covered by the general provisions (i.e. the “ROZ” model published by the Real Estate Council of the Netherlands). On the one hand, the lessee must notify the lessor in good time of any changes in its organisation and structure. On the other, at the start of the lease, the lessee must pay a deposit or furnish a bank guarantee as security for performance of the obligations arising from the lease agreement.
The ROZ models are standards which in most cases form the basis for the lease agreement and the associated general provisions. Nevertheless, it’s a good idea for you as a lessor to take another critical look at that standard, especially if your lessee is a BV. A specific situation requires a customised solution.
When you enter into a lease agreement with a BV, you need to think carefully about the following aspects:
- Keep a close eye on how the organisation and structure of the BV is arranged – who are the directors and shareholders and what is the issued capital?
- What financial guarantees does the lessee offer?
- Who in fact offers these financial guarantees, the BV and/or the director? And for how long?
- Is the director of the BV another BV? In that case consider additional guarantees.
- Is it possible to increase the bank guarantee or the deposit during the term of the lease?
- When does the lessee need to notify the lessor of any changes in its organisation and structure, and how must that be done?
- Include a specific penalty if the lessee does not inform you as the lessor in time about changes in its organisation.