Recent developments in the field of sustainability have not escaped the notice of the Council for Real Estate Matters (Raad voor Onroerende Zaken, “ROZ”)). In the Netherlands, the majority of (commercial) leases is based on the ROZ’s model, including the standard general conditions applying to it. The 2012 ROZ model of the lease of business premises (which includes hotels) within the meaning of Section 7:290 DCC referred only to sustainability in one clause. This clause merely instructed the parties to ‘support each other’ in achieving joint sustainability objectives. On 23 January 2023, the ROZ published a new model of the lease for business premises within the meaning of Section 7:290 DCC. In Article 15 of this ROZ model, which is referred to as ‘2022’, sustainability has been given a much more prominent presence.
The sustainability clause in the new ROZ model
In addition to the general obligation to support each other in achieving sustainability objectives, Article 15.1 of the Model makes parties take at least the sustainability measures they set out in an annex to the lease upon concluding the lease. In this context, the ROZ has prepared a ‘sustainability matrix’ as an inspiration, with examples of things the parties might agree on.
Article 15 of the Model reserves a big role for the obligation to save energy. Article 15.2 of the Model provides that the parties acknowledge that energy-saving measures that can objectively be earned back within five years must be taken on the basis of the Activities Decree. As we discussed in our previous article, it will not always be clear in practice whether the responsibility for performing the obligation to save energy, and reporting this to the authorities, lies with the lessor or with the lessee. This may differ from case to case since it depends on the factual circumstances. In an attempt to anticipate this and to avoid that parties are left at the mercy of the judgment of authorities, the ROZ has included the following arrangements, inter alia. Under Article 15.3 of the Model, the energy-saving measures shall be performed by and for the account of the lessee, unless they are measures that must be taken on the shell (or shell-plus) of the leased property. Given the predominantly lessor-friendly nature of the ROZ models and the standard division of maintenance tasks, this is not very surprising. Nevertheless, parties are free to agree on a deviating division. Article 15.6 provides that if the lessor wants to perform energy-saving measures, the lessee shall cooperate in them, even if this will affect the service charges.
Article 15.7 of the ROZ model also provides that the energy-saving measures the lessee has performed will not be removed or undone by the lessee at the end of the lease, unless the lessor indicates otherwise. If the facilities have been installed less than five years ago and have therefore not been fully earned back yet, the parties shall consult with each other on reasonable compensation for these facilities.
The reporting obligation
It is important to agree clearly on the responsibility for the obligation to report in the context of the obligation to save energy. Under Article 15.8 of the ROZ Model, the lessee has to comply with the obligation to report for its own account and risk. This means that the lessee has to report to the competent authorities once per four years on the measures taken; according to the Activities Decree, this obligation is on the ‘operator’ of the ‘establishment’. Apart from the question whether this indicates that the lessee is actually designated as the operator of the establishment (which depends on the factual situation), the responsibility for reporting under the lease is placed on the lessee. This creates clarity and prevents uncertainty if the authorities have to make an assessment. According to Article 15.8, the lessor has to provide the lessee at the lessee’s first request with all information regarding the measures performed by the lessor.
Conclusion
In the future, additional sustainability measures are expected to be introduced under different laws and regulations. For example, with a view to the intended halving of CO2 emissions in 2030, the obligation to save energy is expected to be tightened and the mandatory energy label C (currently only applicable to office space) is expected to be extended to other business accommodation as well. Article 15 of the new ROZ model lays the foundations for this in paragraph 9, in which this article is made to apply mutatis mutandis to any sustainability measures that must be performed on the leased property pursuant to other laws and regulations. For this purpose too, implementing sustainability arrangements in the lease, either according to the ROZ model or with lessee-friendly adjustments as desired, is a wise thing to do for hotel keepers too.
