Advice to HR: rent price change clauses not unfair after all

We wrote earlier that preliminary questions had been submitted to the Supreme Court by the courts regarding the unfairness of rent modification clauses, after several subdistrict courts concluded that some rent increases in the free sector had been unjustly implemented.

If the Supreme Court shares the opinion of those subdistrict courts, research shows that landlords may have to repay billions.

The questions posed to the Supreme Court should lead to a ruling on the (un)fairness of rent modification clauses that tie an annual rent increase to (CPI) inflation with an additional surcharge of x-number of percent on top. That (un)fairness should be tested against the Unfair Terms Directive.

Now there is light on the horizon for landlords. Namely, what is the case? In mid-July 2024, the advisor to the Supreme Court, in this case Deputy Attorney General Wissink, concluded that such a rent modification clause must be split for purposes of testing its (un)fairness. On the one hand, there is the inflation clause and, on the other, the fixed storage clause. Wissink takes as a general premise that landlords in the free sector have a legitimate interest in being able to increase the rent. Wissink is critical of a number of elements of the clause, but ultimately concludes that a storage clause of up to 3% on top of the indexation according to CPI is generally not unfair.

Often, the Supreme Court follows the opinion. It is now waiting for its final opinion.

Advice

Do you have questions about the above developments or do you have other legal questions about tenancy law? Our specialized attorneys will be happy to assist you. Contact one of our lawyers by mail, telephone or fill in the contact form for a free initial consultation. We will be happy to think along with you.